[ALBANY, NY, Dec. 15] Seeking to avert a federal Justice Department takeover of New York's 2008 federal election, and a possible court-ordered purchase of computerized voting machines, attorneys Andrea Novick and Jonathan Simon of Election Defense Alliance (EDA) on Friday filed an amicus brief in United States v New York State Board of Elections [27] (Case # 1:06-cv-263). The case is scheduled for argument in United States Federal Court in Albany on December 20.

The Voting Rights division of the Justice Department is suing the state board of elections for its alleged failure to comply with Help America Vote Act (HAVA) requirements for voting systems that assist voters overcoming physical or linguistic barriers to voting. The Justice Department is seeking to compel New York to deploy computerized voting systems to address HAVA requirements.

The amicus brief, filed on behalf of 32 election integrity groups and individuals, argues that hand-counting the two federal races in New York in 2008, combined with the addition of accessible ballot marking devices at every polling site, is consistent with the essential requirements for democratic elections and will bring the state fully into compliance with HAVA, as sought by the Department of Justice.

Novick, who practices in New York state, recognized that the federal-state legal standoff over HAVA presented what co-counsel Simon called "an opportunity to offer an alternative solution that moves away from other states' disastrous experience using secret, computerized vote-counting equipment."

"Hand-counted paper ballots satisfy the requirements of HAVA, and fulfill the democratic requirement for transparent verification that computerized systems cannot," Novick said.

As remedy, the brief recommends that the federal court order hand-counting of ballots for the two federal races (president and congress) on New York's ballot next November. The federal HAVA requirements at issue apply only to federal elections.

The brief cites multiple New York state legal precedents defining the right to vote as not merely casting a ballot, but including rights to observe and confirm that ballots are received and accurately counted as cast.

The brief also argues that New York's currently-used mechanical lever voting machines are legal under the federal Help America Vote Act (HAVA), if supplemented by an accessible ballot marking device at every polling site to accommodate voters with special needs.

More than 200 pages of supporting documentation were filed with the brief--including overwhelming evidence that electronic voting systems are not only error and manipulation-prone, but also unconstitutional in their secrecy of operation and lack of transparent means to verify the vote count.

The documentation also includes detailed procedural guides and cost and time estimates for hand counting ballots, prepared and submitted by election integrity groups and individuals who signed on to the brief.

Novick saluted the "cooperation and enthusiasm displayed by our colleagues across the election integrity spectrum" in preparing these critically important documents for the court.

For further information and updates on scheduling please contact Sally Castleman at SallyC[at]ElectionDefenseAlliance[dot]org [28] (781-454-8700) or Jonathan Simon at VerifiedVote2004[at]aol[dot]com [29] (617-538-6012).

For further case details, news, and links to court documents, see

Contacts:
John R. Brakey, AUDIT-AZ (520) 250-2360
Jim March, BlackBoxVoting.org, 916-370-0347

Additional Background Resources Linked Below

Brewing Up Election Trouble:
Activists Respond To AZ Sec. of State Brewer’s 11-Page Letter

On 6/6/08 Arizona Secretary of State (SOS) Jan Brewer wrote an 11-page letter outlining objections to the election integrity process in Pima County.  The letter followed a June 4th vote by the Pima County Board of Supervisors not to appeal a court decision establishing that computerized election databases are public records that must be released to political parties according to state law after each election.

Beginning in 2004, Pima County citizen election integrity advocates working with and within the Pima County Democratic Party were able to cooperate with the county government to achieve significantly improved election transparency and security measures that make Pima County a model for fair elections in the state and nation. With the lawsuit over, that cooperation is now picking back up.

Brewer is intent on blocking this progress. Her press release and letter reprimanding county officials (see links at the end of this document) make clear her objections to any current and future security measures. The letter is filled with misstatements and inaccuracies that echo talking points by voting machine vendors.

Brewer maintains that most of the increased election security procedures created by Pima County in cooperation are superfluous, since the state’s “statutory and procedural security, educational and
accountability requirements” assure fair and honest elections.

Her assertions don’t stand up to scrutiny.

Brewer maintains that voting equipment is vigorously tested and certified at the federal and state levels. The state’s testing and certification process amounts to little more than an ineffective “kicking the tires” of the voting equipment.  The state does no “red team” type security analysis, in which qualified security professionals take a complete voting system and, acting as both voters and elections staff in separate scenarios, attempt to subvert a test election.
When “red team” testing was performed in California, every voting system failed miserably.

Brewer objects to the disabling of modems that could allow outside tampering to anyone who knows the phone number.
Brewer maintains that touch screen voting machines help disabled voters. Diebold and other providers of touch screen machines have long used the ploy of helping disabled voters to get their machines into polling places, while providing seriously substandard access. Brewer’s view of “accessibility” involves twisting disabled grandmothers into pretzels as shown.

Brewer adamantly opposes the county’s proposal to graphically scan ballots and upload them to the Internet.  Brewer vastly exaggerates the cost of this “security patch” which would cost under $150,000 in Pima County. This security measure was recommended by election integrity advocates working with the Pima Democrats as a check on Diebold products, declared “fatally flawed” along with every other Brewer-approved system in open court by Pima County’s own experts. Brewer has no trouble with spending $3 million to $6 million to replace the Diebold equipment with another vendor’s garbage, making her objections based on cost ring hollow.

The Need for Election Transparency

The concerns above and many more raised by Secretary of State Jan Brewer’s letter are discussed in greater detail in our full-length report, "Brewing Trouble [31]," linked below, but the point is clear. Brewer’s thinking does not include the concept of election transparency, where every phase of the election is open to the legally proscribed oversight by Arizona’s political parties. She apparently believes the voters should trust the state and counties to conduct fair elections. The Pima County Democratic and Libertarian Parties and Pima County’s officials are working together to create a transparent secure system – those are not opposites, they are hand-in-hand partners to a truly Democratic process.

The continuing efforts by Secretary of State Jan Brewer to impede our progress and to keep the process of counting votes a hidden and mysterious process makes us question her commitment to fair elections in Arizona.
                                                                                 

Read Our Full-length, Point-by-point Rebuttal:
http://www.electiondefensealliance.org/files/BREWING_TROUBLE.pdf [32]

Secretary Brewer’s June 5 Press Release:
http://www.azsos.gov/releases/2008/pressrelease14.htm [33]

Secretary Brewer’s June 5 11-page letter to Pima County:
http://www.azsos.gov/releases/2008/14_files/SECURITY_LETTER_PIMA_6-5-2008.pdf [34]

For Additional Context on the Pima County Election Security Lawsuit, see:
http://www.electiondefensealliance.org/pima_election_database_release_ruling [35]

Major Miscount of Vote in 2006 Election:

Election Defense Alliance Calls for Investigation

BOSTON, MA - November 16, 2006
CONTACT: Jonathan Simon 617.538.6012

Election Defense Alliance, a national election integrity organization, issued an urgent call for further investigation into the 2006 election results and a moratorium on deployment of all electronic election equipment, after analysis of national exit polling data indicated a major undercount of Democratic votes and an overcount of Republican votes in U.S. House and Senate races across the country. “These findings raise urgent questions about the electoral machinery and vote counting systems used in the United States,” according to Sally Castleman, National Chair of EDA. "This is a national indictment of the vote counting process in the United States!"

As in 2004, the exit polling data and the reported election results don’t add up. “But this time there is an objective yardstick in the methodology which establishes the validity of the Exit Poll and challenges the accuracy of the election returns,” said Jonathan Simon, co-founder of Election Defense Alliance. The Exit Poll findings [36] are detailed in a paper published today on the EDA website. [Note: The preceding link is to the original report; an updated version issued Jan. 17, 2007 is available here.] [37]

The 2006 Edison-Mitofsky Exit Poll was commissioned by a consortium of major news organizations. Its conclusions were based on the responses of a very large sample, of more than 10,000 voters nationwide*, and posted at 7:07 p.m. Election Night [38], on the CNN website. That Exit Poll showed Democratic House candidates had out-polled Republicans by 55.0 percent to 43.5 percent – an 11.5 percent margin – in the total vote for the U.S. House, sometimes referred to as the “generic” vote.

By contrast, the election results showed Democratic House candidates won 52.7 percent of the vote to 45.1 percent for Republican candidates, producing a 7.6 percent margin in the total vote for the U.S. House — 3.9 percent less than the Edison-Mitofsky poll. This discrepancy, far beyond the poll’s +/- 1 percent margin of error, has less than a one in 10,000 likelihood of occurring by chance.

By Wednesday afternoon the Edison-Mitofsky poll had been adjusted, by a process known as “forcing,” to match the reported vote totals for the election. This forcing process is done to supply data for future demographic analysis, the main purpose of the Exit Poll. It involved re-weighting every response so that the sum of those responses matched the reported election results. The final result, posted at 1:00 p.m. November 8 [39], showed the adjusted Democratic vote at 52.6 percent and the Republican vote at 45.0 percent, a 7.6 percent margin exactly mirroring the reported vote totals.

The forcing process in this instance reveals a great deal. The political party affiliation of the respondents in the original 7:07 p.m. election night Exit Poll closely reflected the 2004 Bush-Kerry election margin. After the forcing process, 49-percent of respondents reported voting for Republican George W. Bush in 2004, while only 43-percent reported voting for Democrat John Kerry. This 6-percent gap is more than twice the size of the actual 2004 Bush margin of 2.8 percent, and a clear distortion of the 2006 electorate. There is a significant over-sampling of Republican voters in the adjusted 2006 Exit Poll. It simply does not reflect the actual turnout on Election Day 2006.

EDA’s Simon says, “It required some incredible distortions of the demographic data within the poll to bring about the match with reported vote totals. It not only makes the adjusted Exit Poll inaccurate, it also reveals the corresponding inaccuracy of the reported election returns which it was forced to equal. The Democratic margin of victory in U.S. House races was substantially larger than indicated by the election returns.”

“Many will fall into the trap of using this adjusted poll to justify inaccurate official vote counts, and vice versa,” adds Bruce O’Dell, EDA’s Data Analysis Coordinator, “but that’s just arguing in circles. The adjusted exit poll is a statistical illusion. The weighted but unadjusted 7 pm exit poll, which sampled the correct proportion of Kerry and Bush voters and also indicated a much larger Democratic margin, got it right.” O’Dell and Simon’s paper, [40] detailing their analysis of the exit polls and related data, is now posted on the EDA website.

[Ed. note: The original Landslide report (link above) released on 11/17/06 has since been updated to address questions EDA received in response to the original publication. The updated version of 01/17/07 can be downloaded here [41].]

Election Defense Alliance continues to work with other election integrity groups around the country to analyze the results of specific House and Senate races. [42] That data and any evidence of election fraud, malicious attacks on election systems, or other malfunctions that may shed more light on the discrepancy between exit polls and election results will be reported on EDA’s website.

This controversy comes amid growing public concern about the security and accuracy of electronic voting machines, used to count approximately 80 percent of the votes cast in the 2006 election. The Princeton University Center for Information Technology Policy, in a September 2006 study, was the latest respected institution to expose significant flaws in the design and software of one of the most popular electronic touch-screen voting machines, the AccuVote-TS, manufactured by Diebold, Inc. The Princeton report [43] described the machine as “vulnerable to a number of extremely serious attacks that undermine the accuracy and credibility of the vote counts it produces.” These particular machines were used to count an estimated 10 percent of votes on Election Day 2006.

A separate “Security Assessment of the Diebold Optical Scan Voting Terminal,” [44] released by the University of Connecticut VoTeR Center and Department of Computer Science and Engineering last month, concluded that Diebold’s Accuvote-OS machines, optical scanners which tabulate votes cast on paper ballots, are also vulnerable to “a devastating array of attacks.” Accuvote-OS machines are even more widely used than the AccuVote-TS.

Similar vulnerabilities affect other voting equipment manufacturers, as revealed last summer in a study by the Brennan Center [45] at New York University which noted all of America’s computerized voting systems “have significant security and reliability vulnerabilities, which pose a real danger to the integrity of national, state, and local elections.”

The most prudent response to this controversy is a moratorium on the further implementation of computerized voting systems. EDA’s O’Dell cautioned, “It is so abundantly clear that these machines are not secure, there’s no justification for blind confidence in the election system given such dramatic indications of problems with the official vote tally.” And EDA’s Simon summarized, “There has been a rush by some to celebrate 2006 as a fair election, but a Democratic victory does not equate with a fair election. It’s wishful thinking at best to believe that the danger of massive election rigging is somehow past.”

EDA continues to call for a moratorium on the deployment of electronic voting machines in U.S. elections; passage of H.R. 6200 [46], which would require hand-counted paper ballots for presidential elections beginning in 2008; and adoption of the Universal Precinct Sample (UPS) handcount sampling protocol [47] for verification of federal elections as long as electronic election equipment remains in use.

The Exit Poll analysis is a part of Election Defense Alliance’s six-point strategy [48] to defend the accuracy and transparency of the 2006 elections. In addition to extensive analysis of polling data, EDA has been engaged in independent exit polling, election monitoring, legal interventions, and documentation of election irregularities.

*The sample was a national sample of all voters who voted in House races. It was drawn just like the 2004 sample of the presidential popular vote. That is, precincts were chosen to yield a representative (once stratified) sample of all voters wherever they lived/voted--including early and absentee voters and voters in districts where House candidates ran unopposed but were listed on the ballot and therefore could receive votes. As such, the national sample EDA worked with is exactly comparable to the total aggregate vote for the House that we derived from reported vote totals and from close estimates in cases of the few unopposed candidates where 2006 figures were unavailable but prior elections could be used as proxy. It is a very large sampling of the national total, with a correspondingly small (+/-1%) MOE. There were four individual districts sampled for reasons known only to Edison/Mitofsky

ABOUT ELECTION DEFENSE ALLIANCE
The purpose of EDA is to develop a comprehensive national strategy for the election integrity movement, in order to regain public control of the voting process in the United States. Its goal is to insure that the election process is transparent, secure, verifiable, and worthy of the public trust. EDA fosters coordination, resource-sharing, and cohesive strategic planning for a nationwide grassroots network of citizen election integrity advocates.

Jonathan Simon, Co-founder, Election Defense Alliance. He is an attorney who prior work as a polling analyst with Peter D. Hart Research Associates helped persuade him of the importance of an exit poll-based election “alarm system.” Jonathan[at]ElectionDefenseAlliance[dot]org 617.538.6012

Bruce O'Dell is head of the Election Defense Alliance Data Analysis Team. His expertise is in the design of large-scale secure computer and auditing systems for major financial institutions. Bruce[at]ElectionDefenseAlliance[dot]org 612.309.1330

Andrew Byrnes, Chair
San Mateo County Democratic Central Committee
Phone: 650-575-8112

Gail Work, Chair
San Mateo County Democratic Party Election Integrity Committee
Phone: 650-400-9909

Paper Ballots Unavailable at San Mateo County Polls
San Mateo County Democratic Party Calls for Investigation into Election Day Ballot Shortages

[San Mateo County, CA]  -- By 10:00 a.m. on election day, February 5th, San Mateo County election observers saw that paper ballots were in very short supply at numerous polls.

Requests for more paper ballots from many polls workers across the county were made to the elections office beginning mid-morning.

Despite the county's purchase of onsite equipment to allow printing of paper ballots, poll workers were told to wait until they were "down to a few" ballots before requesting more.

Between the paper ballot request time, the printing time and delivery time, delays were being felt by voters and poll workers throughout the
day at many polls.

With record voter turnout, this was frustrating for voters who were directed to electronic voting with the lack of paper ballots at many of the polls.

"I observed that many polling places in the county kept running out of paper ballots", stated Gail Work, San Mateo County Democratic Party Election Integrity Chair.

"Our team of volunteer election observers saw that no new ballots would be ordered for delivery until they were down to as few as two ballots at a polling place. This caused delays in voters being processed and therefore discouraged people from voting at all or from voting on paper," Work continued.

"I'm concerned that paper ballots are being discouraged in polling places because it's more convenient for election office internal operations and reports results faster.

We should not permit fast election reporting to take precedence over absolute assurance of accurate election results. Many voters prefer to
use paper, especially after the Secretary of State Debra Bowen's top-to-bottom review of security on these machines," Work said.

Official election observers for the San Mateo County Democratic Central Committee saw poll worker preference for electronic voting when paper ballots ran short, despite voter preferences.

Paper ballots were short or ran out at an estimated 40-50 polls with wait times of 4-5 hours to get more ballots. Some polls never received refills and waited for as long as five hours.

At one East Palo Alto poll, a voter there requested a paper ballot three times and then was finally discouraged from using that paper ballot entirely.

The procedure is supposed to be that voters are offered paper ballots when they arrive at the polls.

On February 5th, voters had to request, sometimes repeatedly, a paper ballot.

This discouragement of paper ballots deprives voters of their right to be fully informed of their options and to choose the paper option for voting.

Paper ballots must be made available to voters who do not choose to use electronic voting machines.

The San Mateo County Democratic Party supports further investigation into the cause and effect of the shortage of paper ballots for the Presidential primary election.

Voters who were declined a paper ballot at their polling place are requested to file a Voter Complaint Form to the Secretary of State's office.

Find this form online at:  http://www.sos.ca.gov/elections/elections_fraud.htm [49]

National Election Day Vote Vigil Poster

Take ID to the Polls Just to Be Sure
Read why. . . [61]

FOR IMMEDIATE RELEASE Monday, February 4, 2008

Contacts:

Sen. Karen Johnson 602.926.3160 kjohnson[at]azleg[dot]gov fax: 602.926.3429

John R. Brakey 520. 250.2360 AUDITAZ[at]cox[dot]net

Jim March 916.370.0347 1.jim.march[at]gmail[dot]com

Tri-partisan Coalition Denounces Illegal Vote-Counting in Maricopa County

[ PHOENIX, AZ] -- Several Arizona Legislators and a tri-partisan citizens’ coalition will present an official complaint alleging use of illegal vote-counting software and obstruction of citizen observation rights by the Maricopa Elections Department in a press conference Monday, February 4th, at 12:30 pm on the Arizona Senate lawn.

The Arizona Election Transparency Project will support allegations that the Maricopa Elections Department and vendor Sequoia Voting Systems have illegally been using uncertified ballot programming software to conduct county elections with legal and technical investigatory documentation distributed to the press.

Copies of a sweeping public records request to be served on the Maricopa County Elections Department today will also be distributed to the press, political parties, and the public.

Sequoia Voting Systems is the manufacturer of the computerized election equipment used in Maricopa. Recent revelations by a former Sequoia employee, corroborated by technical examination reports commissioned by the States of California and Pennsylvania, show that an entire subsection of the Sequoia product line known as the Ballot Preparation Software (“BPS”) essential to program ballot definitions in elections, was fraudulently withheld from mandatory certification review at the federal and state levels.

According to Sequoia’s own product manuals, the BPS ballot preparation software tool can take total control over a computerized election database – and therefore over the recording of the votes. The BPS software application is integral and necessary to the operation of the entire Sequoia voting system.

Federal and state law requires that computer voting machine systems be subject to certification review. The documented failure to subject the Sequoia BPS software application to certification review renders the entire Maricopa County computerized voting system illegal according to the federal Help America Vote Act of 2002 (HAVA), which authorized the purchase of the voting equipment.

The integrity of the federal voting system certification process is itself in question, following delayed public disclosure last year by the federal Election Assistance Commission that two of the three private test labs it had contracted to perform certification testing of the nation’s computerized voting systems were subsequently disqualified for failure to perform the required testing. All of the computer voting systems currently in use in Arizona were certified by these now debarred test labs.

The coalition presenting today’s press conference also condemn the Maricopa County Elections Department for obstructing citizen rights to election observation and oversight. The County has recently denied computer specialist Jim March and election activist John Brakey credentials as official public observers of pre-election logic and accuracy testing of the county’s electronic voting system.

Brakey and March were the lead investigators in a recent successful public records lawsuit against the Pima County Elections Department which resulted the release of 300 election databases, the largest release of raw election data in the history of electronic voting. Brakey and March are supported in their insistence that “voting is secret, but the counting is public” by Arizona Revised Statute 16-601 which states, “The count shall be public, in the presence of bystanders.”

The coalition of citizens and legislators convening today’s press conference declare that the County's refusal to allow technically qualified citizen observation of elections compounds their violation of election law by the continued use of uncertified and therefore unlawful vote-counting software in the conduct of public elections.

For the The Arizona Election Transparency Project:

John R. Brakey, Democrat, Tucson

Randy Graf, Republican, Tucson

Dan Gutenkauf, Republican, Tempe

Michael Shelby, Democrat, Phoenix

Jim March, Libertarian, Tucson

Click to download: http://www.electiondefensealliance.org/files/Uncounted_PressKit.doc [67]