One of the rationales of the advocates for replacing New York’s lever voting machines with optical scanners was the creation of a “paper trail” of ballots which could be hand-counted for verification. However, in the first year of the use of optical scanners, New Yorkers are learning that getting permission to have those paper ballots hand-counted is a rare and expensive proposition, which might not necessarily end with the winner being the candidate with the most votes. The close election in New York Senate District 7 provides an example.
The auditing of the optical scanners in Nassau County continues despite last week’s unfortunate ruling by the NY Court of Appeals refusing to order a full hand count of the ballots. Republican candidate Jack Martins is now the certified winner of the race for the 7th District State Senate seat.
This presents the troubling possibility that the audit, which could eventually be expanded to a 100% hand count, will reveal that the declared (and by then likely seated) winner got fewer votes than his opponent, incumbent State Senator Craig Johnson, a Democrat.
According to the Court decision, even if it is revealed that the wrong winner was declared, the machine count of the votes will stand!
In the Nassau County race where approximately 85,000 votes were cast, the machine count showed Republican candidate Jack Martins leading Democratic incumbent Craig Johnson by 451 votes, a margin of only 0.5%. A spot-check (erroneously called an ‘audit’) was performed, with hand-counting of the paper ballots cast on 3% of the voting machines. Johnson went to court seeking a full hand count. The NY Supreme Court denied the request, and last week the Court of Appeals affirmed the lower court’s decision, stating, “There is no substantial likelihood that the result of the election would be altered by the conduct of a full manual audit.”
In making the original decision, the Supreme Court apparently failed to understand the math involved. They simply multiplied the error rate found in the 3% sampling by 33.3 and concluded that a 100% hand count of the ballots would not wipe out Martin’s 451-vote lead in the race. Had they allowed the expert testimony by statistics professor Philip Stark, the Court would have understood that the situation called for more than a simple multiplication problem: the calculation should have included the margin of “victory” and the unlikelihood that the error rate in a 3% sample is truly representative of the whole. (With only 3% of the machines audited, there is a 97% chance that the machine with the most errors was not audited at all.) According to Stark’s analysis, “To have 90% statistical confidence that Mr. Martins won requires auditing a minimum of 90% of the machines selected randomly: an additional 218 machines.” And the 90% sample would have to be error-free.
Even Bo Lipari of New Yorkers for Verified Voting, which has long pushed for the replacement of lever voting machines with optical scan voting systems even without effective state audit/recount laws in the state of New York– much to the frustration of the Election Transparency Coalition — is appalled by the Court’s failure to understand the way spot-checking machine vote counts is supposed to work. His explanation is worth reading even though Lipari fails to acknowledge that the current situation is a predictable result — based on similar problems throughout the nation in recent years — of using the e-voting technology his group has pushed.
Will the State Senate race in NY’s 7th District follow in the footsteps of the 2000 presidential election, where courts declared Bush the winner of Florida’s electoral votes and thus the presidency, but later counting of the votes revealed that Gore had actually won Florida?
This week’s NY Court of Appeals ruling clearly illustrates one of the reasons the Election Transparency Coalition has fought the computerization of NY’s vote counting. Arguments that optical scan systems such as NY’s new voting system are safe because the computer count can be verified by hand counting of the ballots fall far short of protecting our sacred elections. All around the country, in election after election, the paper ballots are not hand-counted when they should be. Here in NY, a count is taking place, but not until AFTER a winner has been declared!
The accuracy of machine counts is only one of many problems with optical scan voting systems. With the new optical scan voting system, NY voters no longer have the overvote protection afforded by the lever machines. And when paper ballots are introduced and are not counted at the polling place in full public view on election night, the chain of custody of those ballots becomes as crucial as is chain of custody of evidence in criminal trials. Yet rigorous chain of custody procedures are rarely followed.
Voters have been left with a system that is neither accurate nor secure, a system that also lacks the transparency constitutionally guaranteed to NY voters. This is why the Election Transparency Coalition continues to work to bring back the state’s time-tested, accurate and transparent lever voting systems.