Bo Lipari’s Blog

Last of the DREs pull outs of the Empire State

It is now official. Liberty Election Systems has withdrawn their DRE from the New York State and has informed the State Board of Elections that they will not pursue further certification testing or fill their one current order. LibertyVote was promoting the Dutch Nedap DRE in New York State, but needed to post another $750,000 bond to cover the costs of ongoing certification testing as required by state regulations. Apparently LibertyVote and their partner Nedap decided it was time to stop throwing good money after bad and pulled the plug. LibertyVote/Nedap was the only remaining vendor offering a DRE in New York. The move represents the end of an era in New York State, and could be a harbinger for what lies ahead in the rest of the nation.

From way back in 2002, voting machine vendors were licking their lips at New York’s big $220 million dollar chunk of the HAVA pie. And right from the start they pitched the idea that “New York State was a DRE state”, a phrase which pretty much everyone bought into except for the citizen advocates who fought a long hard campaign to overcome this ‘accepted wisdom’.

The DREs pitched in New York, while sharing all the same problems and vulnerabilities of models used in other states, had a unique requirement – the touch screen needed to be very, very, very large, to accommodate New York’s full face ballot, resulting in a typically huge machine that weighed hundreds of pounds; was difficult to transport and store; and begged the question – what’s it going to cost to replace that big touch screen?

But what looked like a done deal four years ago slowly but steadily became something akin to rats leaving a sinking ship. As pressure from the public increased and support for DREs eroded among state election officials and legislators, one by one vendors abandoned their DREs for paper ballot based systems. First ES&S abandoned their giant behemoth of a DRE. Last summer, Sequoia quietly dumped their multiple-touchscreen Advantage DRE for a new hybrid Ballot Marker and Scanner. And Avante withdrew last month when no county ordered their tank-sized DRE. But only LibertyVote/Nedap hung in there with a DRE until the bitter end.

Past the bitter end actually, because in January LibertyVote’s DRE was denied certification by the State Board of Elections, which should have been the end of it. But the company sued the State Board of Elections in State Supreme Court. In a surprise ruling the Court ordered the DRE back on the list of machines available for purchase by counties.

However, when the New York’s 58 counties placed machine orders several weeks later, only rural Hamilton county had ordered the Dutch DREs, and only 11 of them at that. Even with this miniscule order the DRE vendor seemed prepared to go ahead, but when the bill for the cost of ongoing certification testing came due last week they must have realized the time had come to fold their cards.

So for the first time since HAVA passed in 2002, New York State has no DREs of any type being purchased by any county, or undergoing NYS certification testing for 2009 purchases. For the vendors who for 6 years told us “New York is a DRE state”, we tell you now as we told you then, “Wrong. New York is a paper ballot state.”

Tags: New York, LibertyVote, Sequoia, Counties, NYS Board of Elections, Avante, ES&S // 8 Comments »

Vendor to sue NY again to allow DREs

I told you the DRE vendors are like zombies, and will never, ever stop trying to force DRE machines on New York State voters. Once again, LibertyVote and their Dutch partner Nedap are preparing to go to Court to challenge county purchases for accessible paper ballot systems, and to overturn New York State’s right to test our voting machines to the strict standards we worked so hard to achieve.

On Thursday, March 20, the Cattaraugus county Board of Elections informed the State Board that they wanted to change the order placed last month for 57 Ballot Marking Devices, and instead want to substitute LibertyVote DREs for the paper ballot systems. This is an astonishing request for several reasons – for one, orders have already been placed for the ballot markers and contracts have been completed, signed and sealed; and for another, the LibertyVote DRE has yet to undergo any testing whatsoever! Yes, that’s right, testing to New York’s rigorous standards has not yet even started, and won’t be completed until this summer at the earliest. But Cattaraugus county is telling the State Board they want to purchase the LibertyVote DRE now, essentially asking them to bypass all testing and simply approve the machine at the next Board meeting on Wednesday, March 26.

The Cattaraugus letter, signed by the county commissioners (and obviously prepared by LibertyVote/Nedap’s lawyers) lays out the vendor’s litigation strategy and arguments to the Court if the State Board refuses the county request to allow them to switch from paper ballots to an uncertified DRE. My guess - if the State Board turns down this outrageous request at the next meeting, LibertyVote/Nedap will be back in State Supreme Court before the close of business asking that New York’s certification testing be canceled and their DRE immediately approved for purchase. And based on their past success in this Court, why wouldn’t they?

But will the 4 Commissioners stand up to the DRE vendor? I certainly hope so, for granting the county’s request would fly in the face of everything the Board has said during the last three years about New York’s rigorous certification process and standards, and would essentially cancel New York’s voting machine certification testing. But there’s cause for concern that the Board may not stand their ground. As I reported in my last post, the Board demonstrated that LibertyVote/Nedap’s legal assaults on New York’s machine selection process have made them reluctant to deny approval to the vendor’s machines, even in light of evidence that they do not meet state requirements.

Let me be clear – if the State Board approves the Cattaraugus request at their meeting, they will violate the letter and the spirit of New York’s election laws and regulations which promise voters a comprehensive and complete testing regimen. If the Board approves this request, they will be enablers for a voting machine vendor that has demonstrated when they can’t win approval on merit, they are willing to force approval by litigation; a vendor that believes that the voices of voters, legislators, and election officials around New York State are but a minor annoyance that can be ignored at their choosing; ultimately, a vendor that believes that their right to profit supersedes the requirements of the law, the voters, and democracy.

Tags: Lawsuits, New York, LibertyVote, Counties, NYS Board of Elections // 3 Comments »

Board Ignores Advice from Citizen Committee

On February 27 the New York State Board of Election Commissioners voted to approve four systems for use as ballot marking devices (BMDs) in 2008. In evaluating the machines, the Board used functional test reports performed by SysTest, and an advisory report prepared by the Citizens Election Modernization Advisory Committee (CEMAC). The CEMAC report recommended that two AutoMARK models and the ImageCast systems be approved. But the committee advised that the Avante and LibertyMark machines were unusable by voters with disabilities, and should not be approved by the Board.

CEMAC was established by the New York State Legislature to advise the State Board of Elections on the adoption of new voting systems. Members includes advocates for the disabled as well as county election commissioners from both major parties. I am a member of CEMAC, appointed by the League of Women Voters of New York State, participated in the evaluations, and drafted the report. Our findings were based on evaluations of the systems being considered by the state that we performed in the last several months. After several evaluation sessions, the committee unanimously recommended that the LibertyMark machine NOT be authorized for use as it was not usable by the vast majority of voters with disabilities.

Unfortunately, three of the four commissioners decided to ignore the CEMAC report findings, and approved the LibertyMark DRE for use as a ballot marking device despite its failure to provide minimal accessibility standards. The reasons given for approval of the DRE were revealing, and showed how pervasive vendor influence over the State Board has become, and how terrified the commissioners seem to be that the vendors might again challenge their decision in court (validating the vendor strategy of legally challenging every Board decision). Unfortunately, review of the meeting transcript and the statements by the commissioners supporting the LibertyMark shows a clear bias towards vendors, not voters.

Only one commissioner, Douglas Kellner, voted to follow the recommendations of CEMAC and not approve the LibertyMark system. As he noted, the very purpose of CEMAC is to provide advice to the Board that cannot be obtained through the functional testing performed by SysTest. Even the SysTest consultant attending the meeting concurred that the CEMAC report was complimentary to their work, and provided valuable insights on real world usability that they do not test for, and should be taken seriously.

The New York State Board of Elections vote to approve the LibertyMark DRE for use as a ballot marking device sheds light on what’s really behind all the happy talk we get about how the Board is serving the needs of New York’s voters. When the Board approves a machine for use by voters with disabilities in spite of the warning from these very voters that the system is unusable, you know whose interests are really being served.

Read an open letter to the Board on their decision by Wanda Warren Berry here.

Tags: New York, LibertyVote, SBOE, NYS Board of Elections // 3 Comments »

Counties Choose Paper Ballots Despite Court Ruling

“It ain’t over till it’s over.”
- Yogi Berra

Just 3 weeks ago, when we thought the ruling by the State Board of Elections had finally eliminated DREs from New York State after a long hard five year campaign, I used a Gandhi quote about grassroots movements. But the DRE vendors weren’t done fighting, and voters were dealt a setback when the State Supreme Court ruled that DREs must be allowed to be purchased by counties. Now, we’ve taken another important step to our goal. But this time, while searching for a quote to capture the true spirit of New York’s contorted, inside out journey to new voting machines, Yogi Berra seems more appropriate.

Earlier this month, Judge O’Connor overruled the decision of the State Board and allowed DREs to be selected by New York counties. But when the county choices were released on February 8 and reaffirmed on February 14, it showed the depth of support for paper ballots created by citizens in our long struggle. As it turned out, of New York’s 58 Boards of Elections, all chose Ballot Marking Devices compatible with paper ballots and scanners but for one - Hamilton, the smallest, which ordered only 11 LibertyVote DREs.

This is very, very good news. For even though counties had the option, ordered by the Court, to choose DREs, they did not! This is a demonstration of the success of the work voting integrity advocates did educating the public, election commissioners and the media. In the end, the commissioners chose paper not because they had to, but because they wanted to. That’s pretty huge and says a lot about how deep our success has been.

But, just like Yogi said, it ain’t over till it’s over, and friends, it ain’t over yet. First of all, Judge O’Connor has required the State Board of Elections to extend the county machine selection deadline yet another four days, until Tuesday, February 19, giving the counties more time to change their selection to the Avante or LibertyVote DREs. But since they reaffirmed their choices last week, I don’t think any counties really want to change anything - they just want to move forward and get the new systems in place. More ominously however, don’t think for a minute that LibertyVote and Avante are done trying to stop this in any way they can.

But if every county in the state has unequivocally stated that they do not want DREs, can DRE vendors force them to do so through the Courts? Indeed they might, for this is the way hardball is played in rough and tumble New York. DRE vendors have put in way too much money to stop now. As you read this, LibertyVote’s lawyers are being paid $300 an hour to come up with something, anything, to salvage their hopes of dipping into New York State’s HAVA pot of gold.

The State Board does not formally authorize the use of the Ballot Markers until February 27, after testing is complete. Purchase Orders will be issued the following day by OGS. LibertyVote has successfully challenged the Boards’ authority to rule on acceptable systems once before, and with the right judge, who is to say they can’t do it again?

New York citizens should be proud of what we’ve accomplished! After five years of our labor every election commissioner in New York State but two have been convinced that paper ballots, ballot marking devices and scanners are a better choice than DREs. This is a tremendous achievement against impossible odds, and a testament to the power of citizen advocacy.

But let’s not get complacent and count the DRE vendors out yet, since as Yogi taught us, it could be “Deja vu all over again”.

Tags: New York, LibertyVote, Counties // 6 Comments »

Court Orders DREs Can Be Sold in NY

It seemed inconceivable that the New York State Supreme Court would overrule the decision of the Board of Elections and allow LibertyVote’s DRE to be purchased by New York counties. But on Monday, 2/4/8, that is exactly what happened, astonishing legal experts and frustrating advocates who thought we’d finally prevailed over the DRE threat. The flawed ruling now sets yet another legal precedent that the right of voting machine vendors to turn a profit supersedes that of voters to demand that the equipment we spend our tax dollars on be up to the job.

It’s unusual in New York State for a Court to rule against an agency legally responsible for a decision, as the Board of Elections is for the states voting machines. But yesterday the Court substituted its own evaluation of the suitability of the LibertyVote DRE for use as a ballot marking device for that of experienced Commissioner Doug Kellner (D) and several independent evaluations. The Court’s ruling hinges on two arguments – that the grocery store style VVPAT is a legal New York ballot, and that LibertyVote submitted changes to the machine in a timely fashion. Unfortunately, neither of these is germane to the key issue – does the DRE meet the requirements of State law and allow voters with disabilities to independently verify their ballot? Clearly it does not. But the Court declined to even address this essential concern.

Reading the decision is astonishing not for what it says, but for what it doesn’t say. Nowhere does the Court address the arguments made in the Kellner affidavit that the LibertyVote mechanism for independent verification of the paper printout is unusable. Nowhere does the Court seem to understand the difference between a ballot marking device and a voting machine, one more reason why someone with no expertise should not make crucial decisions about this issue. Using circular logic, the Court concedes that a “ballot marking device” is not defined in Election Law, but then makes the leap that “Clearly, a voting machine or voting system that meets the requirements of 7-202 will constitute an appropriate ‘ballot marking device’”. The Court wants it both ways, saying that a ballot marking device is not defined in the statute, then saying that it is.

But the Court never seems to understand that any “ballot” produced by a ballot marking device must be able to be verified by a voter who is blind, or in a wheelchair. This is the real shame in this decision. Consideration for LibertyVote to get a return on their investment looms large in this flawed judgment, but consideration for voters is nowhere to be found. How ironic that a Court orders that the LibertyVote DRE, unusable by voters with disabilities, may be used as a ballot marking device. It seems that in this case, truly, justice is blind.

Tags: Lawsuits, New York, LibertyVote // 12 Comments »

Court Asked to Reverse State Ruling Eliminating DREs
Judge Expected to Rule on 2/4/8

The DRE vendor LibertyVote argued in New York State Court that the State Board of Elections acted “ arbitrarily and capriciously” when it decided the DRE does not qualify for use as a Ballot Marking Device in 2008. Now the Court must decide whether to overturn the Board’s decision that the DREs do not satisfy the requirements of New York State Election Law. The DRE vendor wants the Court to authorize their machine despite the Board ruling that it provides no usable way for voters with disabilities to verify their ballot.

I was surprised to see that LibertyVote had set up one of their DREs in the Courtroom, clearly preparing to demonstrate it for the Judge. Normally the focus of an Article 78 hearing is narrow, determining if the Board’s decision was reasonable, not substituting the Court’s opinion on DREs for the decision of the Board. As it turned out, the attempt to ‘demo’ the DRE may have worked against LibertyVote’s lawyers.

The DRE vendor argued that the Board’s decision was “subjective, biased, and unfair to LibertyVote”. Going further, the attorneys argued that it was “a violation of LibertyVote’s rights” and that the Board’s determination was “arbitrary and capricious”. They claimed that the Board’s vote on January 24 eliminating DREs was invalid because all four commissioners weren’t present at the vote. Finally, LibertyVote’s lawyers concluded by asking the Court to disregard the Board’s decision and determine that their DRE “meets Federal and State laws”.

Attorney Paul Collins, representing the Board’s Democratic commissioners, countered that New York Election Law explicitly allows certification of voting equipment by specifically requiring “a determination by a majority of the commissioners”, so the Board’s vote was clearly legal. He also argued forcefully against LibertyVote’s contention that the decision was arbitrary. Citing the affidavit of Commissioner Doug Kellner (D), he argued that the LibertyVote DRE does not meet the standards set by New York law. The Kellner affidavit describes the deliberations involved in evaluating the DRE, citing the requirements of HAVA, my evaluation for the Citizens Advisory Committee, and comments from NYSILC and the Brennan Center.

The most interesting moment came when LibertyVote’s lawyers asked to demonstrate their DRE for the Judge. Paul Collins jumped up and said that he was willing to agree to a demonstration if a “voter in a wheelchair or with visual disabilities” would test the machine. Using the opportunity to visually demonstrate the machines limitations he repeatedly went over to the DRE asking how a voter in a wheelchair could possibly reach the small piece of paper that LibertyVote was calling a “ballot”. After that LibertyVote’s lawyers thought better of their motion to demo the machine, finally asking the Court only to accept one of their grocery store receipt style “ballots” into evidence without an actual demonstration.

Another surprise came out when Board attorney Collins asked the Court to accept into evidence a letter that LibertyVote had sent to all county election commissioners the day before the hearing. In the letter, the DRE vendor makes an astounding claim – that they had been placed back on the list of approved machines. The only problem with this claim is that it’s not true - the Court has not yet ruled whether to add the LibertyVote DRE to the approved list! LibertyVote got caught red handed sending out false information to counties about the Court’s decision. This did not seem to please the Judge, but she allowed the vendor to continue arguing their case.

Talk about astounding claims, another one was made by attorney Alison Carr, representing the State Board’s Republican commissioners and who seemed determined to help LibertyVote make their case rather than defend New York State. At one point LibertyVote’s lawyers argued that whether or not the ballot verification mechanism was actually usable by voters with disabilities was beside the point because it wasn’t part of the bid specifications. Attorney Carr rose to back them up, saying that “Usability is important later when reviewing for certification, but not now”. In other words, it doesn’t matter whether it’s already been determined that the machine is unsuitable for use, because we aren’t supposed to evaluate that yet! Thank goodness that attorney Collins was there to defend New York State’s voters as attorney Carr seemed confused about whose side she was on.

This case really shows what LibertyVote and their Dutch backer Nedap who manufacture the DREs think of New York State voters and our laws. For LibertyVote and Nedap, this is about their right to sell whatever product they want, no matter how unsuitable it is for its intended purpose. For LibertyVote and Nedap, this is about their right to profit large from New York’s HAVA funds, no matter that they’ve failed to be approved by the state of New York. For LibertyVote and Nedap, this is not about the needs of voters with disabilities or the citizens of New York State, this is simply about cold, hard cash.

Judge O’Connor is expected to rule by the end of the day on February 4, 2008.

Tags: Lawsuits, New York, LibertyVote // 3 Comments »