The special elections Feb. 20 for two City Council seats in Brooklyn and Staten Island were supposed to be a milestone for city voters: the last hurrah for old-fashioned lever voting machines, which after decades of service are supposed to be replaced with new electronic devices.
Thanks to a cascade of delays, however, New York City elections officials are now scrambling to figure out how much longer the clunky metal dinosaurs will serve the city – a question that involves two U.S. agencies, a federal judge, a besieged company, and hundreds of millions of dollars.
Had NYC met its own deadline for implementation of new equipment – already years later than federal regulators wanted – new machines would be in place by primary day of 2007, which is Sept. 11. This year is an ideal time for unveiling new technology and working any kinks out, because there’s not much to vote on other than district attorney contests in three boroughs, and turnout is expected to be low.
The overall effort is mandated by the Help America Vote Act (HAVA), a response to the contested presidential election of 2000 that required states to replace lever and punch-card machines with more accurate technology. But this past summer when the state began to evaluate voting machines, it hit roadblocks. Voting machine vendors were late to submit their devices for evaluation. In September, an auditor found problems with Ciber, the Colorado-based company contracted by the state Board of Elections to test the new voting machines for both physical workability and software security. Then last month, the New York Times broke the news that Ciber had failed to receive accreditation from the federal Election Advisory Commission (EAC), a fact that neither the commission nor Ciber had shared with the state board.
The EAC report on Ciber – written in July but released to the public in January only after two state election commissioners threatened to subpoena the company – found that “Ciber has not shown the resources to provide a reliable product” and was unable to follow its own quality-assurance practices.
The EAC says Ciber has until March 5 to resolve outstanding issues. Until then, the state elections board has ordered Ciber, which declined to comment for this story, to stop all testing. The delay means that the plan to put new machines in place for the September primary is, as New Yorkers for Verified Voting Executive Director Bo Lipari puts it, “all but officially off.”
The state board of elections has not yet cancelled implementation for this year, but it is unlikely that there is enough time for the machines to be certified, ordered, manufactured, shipped, warehoused, and introduced to poll workers and voters. New York City Board of Elections executive director John Ravitz says that process takes about a year.
The key question now is how long the U.S. Department of Justice will wait for New York to get it right. Local election officials don’t want to roll out new machines in 2008, when an open presidential election – potentially featuring candidates from New York – is expected to generate massive turnout. Compounding the problem is the fact that New York’s presidential primary is slated for March 2008, and could even move up to February. Ravitz says he’d prefer to launch the new machines in 2009.
While that year’s open mayoral election is likely to draw upwards of 1.5 million voters, at least election workers would have more time to get ready. A Justice Department spokesperson, Cynthia Magnuson, says that her department will “continue to work with the state to help them obtain compliance in the shortest time possible.” But people familiar with those discussions say the DOJ has indicated it wants New York to aim for 2008. The feds can threaten to take back funding if New York disobeys; some $49 million might have been forfeited already.
The more federal money the state loses, the more local boards will have to assume the significant costs of new machines. In vendors’ bids to the city Board of Elections, estimates of the upfront costs for voting systems (either optical scanners, which read paper ballots, or touchscreen devices that work like ATMs, also called direct-recording electronic or DREs) went as high as $116 million. With that much money at stake, it’s not surprising that the vendors have spent some $2.1 million lobbying state and city officials.
Local officials are already spending time and money trying to comply with HAVA. The New York City Board of Elections hired a consultant and brought in new staff more than a year ago just to handle the voting upgrades. It has an evaluation team reviewing the vendors’ bids, and has held public demonstrations of the bidders’ machines. The city board will soon hire a PR firm to design a public education campaign, but the rest of the process hinges on the feds, the state, and Ciber. “It’s a very frustrating process for us because we know what we need to do but we’re still doing it with both hands tied behind our back,” says Ravitz, the city elections board director.
New York is generally considered to be the slowest state in implementing HAVA. The 2002 federal law required states to replace their old equipment in time for the 2004 elections. But New York state, which received $221 million in HAVA money, moved sluggishly to implement the law. The state legislature didn’t pass a measure governing the selection of new voting machines until mid-2005 and rejected a uniform system, instead allowing each local election board to pick its own machine. New York received a federal waiver to delay HAVA implementation to the 2006 elections.
But wrangling over state standards for voting machines delayed the approval of the guidelines until last spring. By that time New York had missed a key HAVA deadline for updating its voter registration system, prompting a lawsuit by the Justice Department. When a federal court issued an order in that case, it was clear that New York wouldn’t have new devices in place for the 2006 vote, so the judge ordered the state to get the new machines in place by Primary Day 2007.
HAVA hasn’t always been a smooth ride outside New York State, either. The DOJ has filed HAVA suits against the states of Alabama and New Jersey, as well as against counties in Arizona, California, and New Mexico, and had to intervene in a court fight over Michigan’s voting system just weeks before Election Day 2004. Most states put in for the waiver allowing them to skip the 2004 deadline – which is why several states still had the notorious punch-card systems in place for the last presidential election – and most states have had to revise the original HAVA plans they filed with the EAC, which itself got up and running later than expected. Governors in at least three states, Maryland, New Mexico and, most recently, Florida, have called for the new machines purchased under HAVA to be replaced with different technology.
The delays aren’t all bad news, however. Voting integrity advocates say that in New York’s case, the hold-ups in part reflect the rigor of the state’s voting machine standards, which demand full-face ballots and a paper trail. And New York has had a chance to learn from other states’ mistakes.
In New York, some voting integrity advocates are treating the delays as an opportunity. They’re pressing Gov. Eliot Spitzer and the legislature to revise the current patchwork policy and impose a uniform technology. “It makes sense to have a single statewide system,” says Neal Rosenstein, government reform coordinator at NYPIRG. “It doesn’t make sense to have optical scan in the Bronx and DRE in Westchester when some [legislative] districts go across those borders.” Advocates for a statewide system also say it offers economies of scale, like bulk discounts from manufacturers and the ability to conduct joint training sessions for poll workers.
One downside of a statewide system is that with such a large order to fill, the winning vendor will face a massive – and potentially time-consuming – manufacturing task. Another problem is that advocates disagree on whether to endorse a particular system. NYPIRG, New Yorkers for Verified Voting, the League of Women Voters, and the Brennan Center for Justice are backing optical scanners, saying they are more secure and accurate than touchscreen machines. But advocates for disabled voters say optical scanners raise accessibility concerns.
Amid the debate over new technology, the old lever machines may seem tried and true. Last year, Suffolk County sued the state Board of Elections, claiming the right to keep using lever machines. But one Brennan Center study found that lever machines in 2004 exhibited a 32 percent rate of residual votes – instances where no vote was recorded or too many were cast. That’s more than twice as bad as any other system tested.