www.wheresthepaper.org/A5withsuggestions.htm

2/3/05

Voting Systems Standards Act of 2005

Assembly Bill A5

with comments by Teresa Hommel

www.wheresthepaper.org/ny.html

The bill text below has not been modified; page and line numbers are the same

as on the Assembly web site, http://assembly.state.ny.us/leg/?bn=A00005&sh=t

In the bill, text in ALL CAPITAL LETTERS is new. Text in curly brackets { }

is old law to be omitted. For ease of reading, two blank lines are inserted at

the beginning of each of the 15 sections of the bill.

22 comments have been inserted in the bill text. Comments are indented and in

boldface.

The greatest failures of this bill concern privatization of elections,

professional-quality audits, and open-source software. The comments here on

these topics are brief. More information is at www.wheresthepaper.org/ny.html.

1. Privatization of elections is the unavoidable result of the use of

electronic voting systems by county Boards of Elections in which personnel

are not required to understand and manage their own systems. Vendor service

contracts to handle electronic voting systems should be banned, and the staff

of county boards of elections should be required to gain expertise in the

software, data, and hardware of their electronic voting systems prior to

their use, as well as thorough knowledge of computer security and auditing.

The law that allows the use of electronic voting systems should require and

fund the training needed for such staff to gain professional competence.

Vendors must be required to provide all information, documentation, and

training necessary for elections staff to gain such competence.

2. Professional-quality audits of elections conducted with electronic voting

systems should be mandated. In the professional world of information

technology, all transaction-capturing and transaction-processing computer

systems are 100% audited and discrepancies are 100% investigated and corrected.

Without this requirement, accuracy of computer results cannot be assumed.

Indeed inaccuracy can be assumed, and fraud and errors will be routinely undetected.

3. Before electronic voting systems are used, all source code of their software

must be posted on the web site of the state Board of Elections. Unless open

source software is mandated, voters must trust a secret process for the

recording and counting of votes. This is inappropriate in a democracy.

S T A T E O F N E W Y O R K

________________________________________________________________________

5--A

2005-2006 Regular Sessions

I N A S S E M B L Y

(PREFILED)

January 5, 2005

___________

Introduced by M. of A. WRIGHT, DESTITO, FARRELL, TOKASZ, DINOWITZ,

LAVELLE, BRADLEY, GALEF, STRINGER, POWELL, LOPEZ, ESPAILLAT -- Multi-

Sponsored by -- M. of A. ABBATE, AUBERTINE, AUBRY, BENEDETTO, BENJA-

MIN, BING, BOYLAND, BRENNAN, BRODSKY, CAHILL, CANESTRARI, CARROZZA,

CHRISTENSEN, CLARK, A. COHEN, M. COHEN, COLTON, COOK, CYMBROWITZ,

DelMONTE, L. DIAZ, DiNAPOLI, EDDINGTON, FIELDS, GORDON, GOTTFRIED,

GRANNIS, GREEN, GREENE, GUNTHER, HEASTIE, HOOPER, HOYT, JACOBS, JOHN,

KARBEN, KOON, LAFAYETTE, LAVINE, LENTOL, LIFTON, LUPARDO, MAGEE,

MAGNARELLI, MARKEY, McENENY, McLAUGHLIN, MENG, MILLMAN, MORELLE,

NOLAN, NORMAN, O`DONNELL, ORTIZ, PAULIN, PEOPLES, PERALTA, PHEFFER,

PRETLOW, RAMOS, REILLY, P. RIVERA, SANDERS, SCARBOROUGH, SCHROEDER,

SEDDIO, SWEENEY, TONKO, WEINSTEIN, WEISENBERG, ZEBROWSKI -- read once

and referred to the Committee on Election Law -- reported and referred

to the Committee on Rules -- Rules Committee discharged, bill amended,

ordered reprinted as amended and recommitted to the Committee on Rules

AN ACT to amend the election law and the state finance law, in relation

to enacting the "voting systems standards act of 2005"; and to repeal

certain provisions of the election law relating to voting machines

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-

BLY, DO ENACT AS FOLLOWS:

1 Section 1. Short title. This act shall be known and may be cited as

2 the "voting systems standards act of 2005".

3 S 2. Subdivision 18 of section 1-104 of the election law is amended to

4 read as follows:

5 18. The word "ballot" when referring to voting machines means that

6 portion of the cardboard or paper or other material OR ELECTRONIC

7 DISPLAY within the ballot frame containing the name of the candidate and

8 the emblem of the party organization by which he was nominated, of the

9 form of submission of a proposed constitutional amendment, proposition

10 referendum or question as provided in this chapter, with the word "yes"

A. 5--A 2

1 for voting for any question or the word "no" for voting against any

2 question except that where the question or proposition is submitted only

3 to the voters of a territory wholly within a county or city, such form

4 shall be determined by the county board of elections. Such statement and

5 the title shall be printed in the largest type which it is practicable

6 to use in the space provided.

7 S 3. Subdivision 1 of section 7-104 of the election law, as amended by

8 chapter 654 of the laws of 1985, is amended to read as follows:

9 1. All ballots shall be printed AND/OR DISPLAYED in {black ink on

10 clear, white material} A FORMAT, COLOR AND ARRANGEMENT, of such uniform

11 size and style as will fit the ballot frame, and SHALL BE in as plain,

12 clear {type} DISPLAY as the space will reasonably permit{, capitalizing

13 only the first letters and initials of each name}. SUCH DISPLAY ON THE

14 BALLOT SHALL SATISFY ALL REQUIREMENTS AND STANDARDS SET FORTH PURSUANT

15 TO THE FEDERAL HELP AMERICA VOTE ACT OF 2002.

16 S 4. Section 7-200 of the election law, as amended by chapter 262 of

17 the laws of 1986, subdivision 2 as amended by chapter 356 of the laws of

18 1986, is amended to read as follows:

19 S 7-200. Adoption and use of voting machine. 1. {The board of

20 elections of the city of New York and the local legislative governing

21 body of each other city and of each town shall, and the board of trus-

22 tees of any village may adopt any kind of voting machine approved by the

23 state board of elections, or the use of which has been specifically

24 authorized by law; and thereupon such voting machine may be used at any

25 or all elections and shall be used at all general or special elections

26 held in such city, town or village and in every contested primary

27 election in the city of New York and in every contested primary election

28 outside the city of New York in which there are one thousand or more

29 enrolled voters qualified to vote except in a town or city in which the

30 voting machines owned by such town or city do not permit the primary of

31 more than one party on a single voting machine for voting, registering

32 and counting votes cast at such elections.

33 2. No city or town may purchase any voting machine of a type approved

34 by the state board of elections after September first, nineteen hundred

35 eighty-six unless such type of voting machine has been approved for use

36 in that county by the county board of elections. No more than two types

37 of voting machines may be used in any city, town or village at a single

38 election. If a voting machine of a type approved by the state board of

39 elections after September first, nineteen hundred eighty-six is used at

40 an election in any election district, no machine of a type approved for

41 use by the state board of elections before September first, nineteen

42 hundred eighty-six may be used in such election district at any subse-

43 quent election. Notwithstanding the other provisions of this subdivi-

44 sion, any county, city or town may borrow or lease for use on an exper-

45 imental basis for a period of not more than one year each, machines of

46 any type approved by the state board of elections after September first,

47 nineteen hundred eighty-six.

48 3.} THE STATE BOARD OF ELECTIONS, UPON THE AFFIRMATIVE VOTE OF AT

49 LEAST THREE MEMBERS OF SUCH BOARD, SHALL CERTIFY VOTING MACHINES WHICH

50 SHALL MEET THE REQUIREMENTS AND SPECIFICATIONS OF THIS CHAPTER AND OTHER

51 SPECIFICATIONS OF SUCH BOARD NOT INCONSISTENT WITH THIS CHAPTER. SUCH

52 VOTING MACHINES SHALL BE THE EXCLUSIVE VOTING MACHINES USED AT ALL

53 GENERAL, SPECIAL AND PRIMARY ELECTIONS CONDUCTED PURSUANT TO THIS CHAP-

54 TER AFTER SEPTEMBER FIRST, TWO THOUSAND SIX.

Comment 1, on the three sentences above.

The State Board of Elections gets broad powers here

and elsewhere in this bill. The law should give

greater guidance.

Comment 2, on the three sentences above.

If these three sentences are prohibiting

the use of lever machines in NY State, they

should explicitly state that.

A. 5--A 3

1 2. ALL VOTING MACHINES CERTIFIED SHALL BE, FROM THE PERSPECTIVE OF A

2 VOTER AND POLL WORKER, SUBSTANTIALLY SIMILAR IN PRESENTATION AND OPERA-

3 TION.

Comment 3, on the sentence above.

"Substantially similar" is a vague standard.

Are all electronic machines substantially similar?

Are all full-face-ballot machines substantially similar?

Is Populex substantially similar to Automark?

4 3. PURSUANT TO SECTION ONE HUNDRED SIXTY-THREE OF THE STATE FINANCE

5 LAW, THE STATE BOARD OF ELECTIONS, UPON THE AFFIRMATIVE VOTE OF THREE

6 MEMBERS THEREOF, SHALL ENTER INTO PROCUREMENT AGREEMENTS WITH THE VENDOR

7 OF EACH CERTIFIED VOTING MACHINE. SUCH PROCUREMENT AGREEMENTS SHALL NOT

8 GUARANTEE THE PURCHASE OF ANY VOTING MACHINES. SUCH AGREEMENTS SHALL

9 DEFINE STANDARD TERMS AND CONDITIONS BY WHICH EACH BOARD OF ELECTIONS

10 MAY PURCHASE SUCH VOTING MACHINES, PROVIDED, HOWEVER, THAT SUCH STANDARD

11 AGREEMENTS SHALL NOT DEFINE ALL OF THE TERMS AND CONDITIONS APPLICABLE

12 TO SUCH PURCHASES AND SHALL ALLOW SOME SUCH TERMS AND CONDITIONS TO BE

13 AGREED UPON BETWEEN INDIVIDUAL BOARDS OF ELECTIONS AND THE VENDORS OF

14 SUCH VOTING MACHINES.

15 4. PURSUANT TO THE FORMULA IN SUBDIVISION FOUR OF SECTION NINETY-SEV-

16 EN-EEEE OF THE STATE FINANCE LAW, THE STATE BOARD OF ELECTIONS SHALL

17 PROVIDE EACH BOARD OF ELECTIONS A VOTING MACHINE PURCHASE ALLOTMENT TO

18 DEFRAY THE COST OF PURCHASING NEW VOTING MACHINES.

19 5. EACH BOARD OF ELECTIONS SHALL PURCHASE CERTIFIED VOTING MACHINES

20 PURSUANT TO ONE OR MORE OF THE PROCUREMENT AGREEMENTS ENTERED INTO

21 PURSUANT TO THIS SECTION. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO

22 REQUIRE THE STATE BOARD OF ELECTIONS TO PROVIDE A BOARD OF ELECTIONS

23 WITH FUNDING FOR ALL VOTING MACHINES IT SHALL REQUIRE.

Comment 4, on three paragraphs above.

After the state Board of Elections enters into agreements

that define "standard" terms and conditions, the counties

can negotiate additional terms and conditions.

What terms and conditions are "standard?"

Do the Counties have to buy new machines to replace

ALL of their lever machines, considering that they

will not get all the funding they need?

24 6. THE STATE BOARD OF ELECTIONS SHALL APPOINT AND CONVENE A CITIZEN`S

25 VOTING MACHINE SELECTION ADVISORY COMMITTEE WITHIN TEN DAYS AFTER THE

26 EFFECTIVE DATE OF THIS SUBDIVISION. THE VOTING MACHINE SELECTION ADVI-

27 SORY COMMITTEE SHALL RECOMMEND VOTING MACHINE SELECTION CRITERIA AND

28 SPECIFICATIONS. THE COMMITTEE SHALL INCLUDE BUT NOT BE LIMITED TO,

29 REPRESENTATIVES FROM AMONG BOARDS OF ELECTIONS, ORGANIZATIONS COMMITTED

30 TO PROTECTING THE VOTING RIGHTS OR PROTECTED CLASSES UNDER FEDERAL LAW,

31 AND DISABILITY RIGHTS ORGANIZATIONS, INCLUDING REPRESENTATIVES FROM NEW

32 YORK STATE INDEPENDENT LIVING COUNCIL, INC., AND ONE OR MORE INDIVIDUALS

33 WITH DISABILITIES. SUCH COMMITTEE WILL MAKE ITS RECOMMENDATIONS TO THE

34 STATE BOARD OF ELECTIONS WITHIN THIRTY DAYS AFTER THE DATE IT FIRST

35 CONVENES. THEREAFTER, THE STATE BOARD OF ELECTIONS SHALL SUBMIT A REPORT

36 TO THE GOVERNOR, THE TEMPORARY PRESIDENT OF THE SENATE, AND THE SPEAKER

37 OF THE ASSEMBLY RECOMMENDING LEGISLATION WHICH MAY BE ADVISABLE TO

38 ENSURE THE STATE IS ABLE TO EMPLOY NEW VOTING TECHNOLOGIES WHICH MEET

39 THE REQUIREMENTS OF THE FEDERAL HELP AMERICA VOTE ACT OF 2002 AND WHICH

40 BEST SERVE THE NEEDS OF THE CITIZENS OF THIS STATE. SUCH REPORT MAY

41 INCLUDE, BUT NEED NOT BE LIMITED TO, RECOMMENDATIONS RELATING TO BALLOT

42 CONFIGURATION REQUIREMENTS.

Comment 5, on the paragraph above.

There is a typo on line 30, "OR" should be "OF"

The citizen's committee should be required to

include computer experts as well as financial auditors,

CPAs, or computer auditors. Otherwise this committee

will be unable to look behind the accessible face of

the machines to evaluate their susceptibility to fraud.

43 7. IF, AT ANY TIME AFTER ADOPTING AN OFFICIAL VOTING MACHINE PURSUANT

44 TO THIS SECTION, THE STATE BOARD OF ELECTIONS DETERMINES SUCH VOTING

45 MACHINE NO LONGER APPROPRIATELY SERVES THE NEEDS OF THE VOTERS OF THIS

46 STATE, THE STATE BOARD OF ELECTIONS MAY DECERTIFY SUCH VOTING MACHINE

47 AND CERTIFY A NEW VOTING MACHINE.

48 8. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ANY VOTING MACHINE

49 APPROVED FOR USE AS OF THE FIRST DAY OF JANUARY, TWO THOUSAND FOUR, MAY

50 CONTINUE TO BE USED AT ELECTIONS HELD PURSUANT TO THIS CHAPTER UNTIL

51 SEPTEMBER FIRST, TWO THOUSAND SIX.

52 9. For five years after any voting machine of a type approved by the

53 state board of elections after September first, nineteen hundred eight-

54 y-six is first used in any election district, the {city or town which

55 purchased such machine} BOARD OF ELECTIONS shall provide a model of such

56 voting machine for each polling place in which any such election

A. 5--A 4

1 district is located. Such models shall meet the standards set forth in

2 regulations promulgated by the state board of elections.

3 {4.} 10. Whenever there are more offices to be elected than can be

4 accommodated on the voting machine or more candidates have been nomi-

5 nated for an office than can be accommodated on the voting machine, the

6 board of elections may provide for the use of separate paper ballots for

7 such offices, when other offices are voted for on voting machines by

8 voters of the same election district.

9 11. THE STATE BOARD OF ELECTIONS UPON THE AFFIRMATIVE VOTE THEREOF

10 SHALL PROMULGATE RULES AND REGULATIONS AS MAY BE NECESSARY TO IMPLEMENT

11 THE PROVISIONS OF THIS SECTION.

12 12. THE STATE BOARD OF ELECTIONS SHALL, IN COORDINATION WITH BOARDS

13 OF ELECTIONS, DESIGN AND IMPLEMENT A STATEWIDE VOTER EDUCATION PROGRAM

14 TO INFORM VOTERS ABOUT THE USE OF THE VOTING MACHINES APPROVED PURSUANT

15 TO THIS SECTION.

Comment 6, on the paragraph above.

This bill does not require or fund training

for poll workers or personnel working for county

Boards of Election. Privatization of elections

and massive opportunity for fraud are the

unavoidable results when election-day workers

and/or election professionals who are not

computer-savvy have to manage computers.

Prior to initial evaluation, acquisition, and use

of computerized voting systems, Board of Elections

management and staff must be required to take training

in handling technical aspects of the computerized

equipment as well as management of secure computer

systems, and to achieve a reasonable level of competence

comparable to that required in business or industry.

Ongoing training must be required to handle new

security risks, and for new staff.

Adequate funding for this training must be mandated

and disbursed in a timely manner.

16 S 5. The state finance law is amended by adding a new section 97-eeee

17 to read as follows:

18 S 97-EEEE. HELP NEW YORK VOTE FUND. 1. THERE IS HEREBY ESTABLISHED IN

19 THE CUSTODY OF THE COMPTROLLER A SPECIAL FUND TO BE KNOWN AS THE "HELP

20 NEW YORK VOTE FUND".

21 2. A. THE COMPTROLLER SHALL ESTABLISH THE FOLLOWING SEPARATE AND

22 DISTINCT ACCOUNTS WITHIN THE HELP NEW YORK VOTE FUND:

23 (I) THE ELECTION MODERNIZATION AND IMPROVEMENT ACCOUNT, AND

24 (II) THE LOCAL ELECTION TECHNOLOGY ASSISTANCE ACCOUNT.

25 B. ALL MONIES RECEIVED BY THE COMPTROLLER FOR DEPOSIT TO THE HELP NEW

26 YORK VOTE FUND SHALL BE DEPOSITED FIRST TO THE CREDIT OF THE ELECTION

27 MODERNIZATION AND IMPROVEMENT ACCOUNT; EXCEPT THAT ANY MONEYS RECEIVED

28 PURSUANT TO SECTION ONE HUNDRED TWO OF THE FEDERAL HELP AMERICA VOTE ACT

29 OF 2002 SHALL BE TO THE CREDIT OF THE LOCAL ELECTION TECHNOLOGY ASSIST-

30 ANCE ACCOUNT.

31 C. NOTWITHSTANDING ANY OTHER LAW, RULE, OR REGULATION TO THE CONTRARY,

32 THE STATE COMPTROLLER IS HEREBY AUTHORIZED AND DIRECTED TO RECEIVE FOR

33 DEPOSIT TO THE CREDIT OF THE FUND ANY MONEYS RECEIVED FROM THE FEDERAL

34 GOVERNMENT PURSUANT TO THE FEDERAL HELP AMERICA VOTE ACT OF 2002 AND ALL

35 MONEYS APPROPRIATED TO SUCH FUND BY THE LEGISLATURE. SUCH MONEYS SHALL

36 BE KEPT SEPARATE AND SHALL NOT BE COMMINGLED WITH ANY OTHER MONEYS IN

37 THE CUSTODY OF THE COMPTROLLER. AT THE END OF EACH YEAR, ANY MONEYS

38 REMAINING IN THE FUND SHALL BE RETAINED IN THE FUND AND SHALL NOT REVERT

39 TO THE GENERAL FUND. THE COMPTROLLER IS HEREBY AUTHORIZED AND DIRECTED

40 TO PERMIT INTEREST EARNINGS ON SUCH FUND BALANCE TO ACCRUE TO THE BENE-

41 FIT OF THE FUND. NO MONEYS SHALL BE EXPENDED FROM ANY ACCOUNT OF SUCH

42 FUND EXCEPT PURSUANT TO APPROPRIATION BY THE LEGISLATURE.

43 3. MONEYS OF THE FUND, FOLLOWING APPROPRIATION OF THE LEGISLATURE,

44 SHALL BE AVAILABLE TO THE STATE BOARD OF ELECTIONS FOR PURPOSES OF

45 IMPLEMENTING THE FEDERAL HELP AMERICA VOTE ACT OF 2002; PROVIDED, HOWEV-

46 ER, THAT ANY EXPENDITURE MADE FOR THE PURPOSE OF PURCHASING VOTING

47 MACHINES SHALL NOT BE MADE FROM THE ELECTION MODERNIZATION AND IMPROVE-

48 MENT ACCOUNT, BUT SHALL BE MADE FROM THE LOCAL ELECTION TECHNOLOGY

49 ASSISTANCE ACCOUNT.

50 4. MONEYS OF THE LOCAL ELECTION TECHNOLOGY ASSISTANCE ACCOUNT SHALL BE

51 PROVIDED AS GRANTS FROM THE STATE BOARD OF ELECTIONS, PURSUANT TO THE

52 AFFIRMATIVE VOTE OF AT LEAST THREE MEMBERS OF SUCH BOARD, TO LOCAL

53 BOARDS OF ELECTION PURSUANT TO THIS SECTION TO DEFRAY THE COST OF

54 PURCHASING CERTIFIED VOTING MACHINES PURSUANT TO SECTION 7-200 OF THE

55 ELECTION LAW. ALL GRANTS FOR SUCH PURCHASES FROM THE LOCAL ELECTION

56 TECHNOLOGY ASSISTANCE ACCOUNT FOR EACH FISCAL YEAR SHALL BE PROVIDED TO

A. 5--A 5

1 COUNTY BOARDS OF ELECTIONS AND THE BOARD OF ELECTIONS OF THE CITY OF NEW

2 YORK IN PROPORTION TO THE PERCENTAGE OF THE STATE`S REGISTERED VOTERS

3 RESIDENT IN EACH SUCH COUNTY OR CITY. SUCH PERCENTAGE AND PROPORTION

4 SHALL BE CALCULATED USING THE NOVEMBER FIRST, TWO THOUSAND FOUR STATE-

5 WIDE VOTER REGISTRATION AND ENROLLMENT NUMBERS PUBLISHED BY THE STATE

6 BOARD OF ELECTIONS.

7 5. ANY MONEYS, OR PORTION THEREOF, IN THE ELECTION MODERNIZATION

8 IMPROVEMENT ACCOUNT MAY BE TRANSFERRED TO THE LOCAL ELECTION TECHNOLOGY

9 ASSISTANCE ACCOUNT AS PROVIDED BY AN ACT OF THE LEGISLATURE.

10 6. ANY MONEYS RECEIVED PURSUANT TO THE HELP AMERICA VOTE ACT OF 2002

11 SHALL NOT BE USED IN ANY MANNER INCONSISTENT WITH THE PROVISIONS OF SUCH

12 ACT.

13 7. MONEYS RECEIVED PURSUANT TO PART ONE OF SUBTITLE D OF TITLE II OF

14 THE FEDERAL HELP AMERICA VOTE ACT OF 2002 SHALL BE USED ONLY TO THE

15 EXTENT AND IN SUCH AMOUNT THAT THE STATE HAS APPROPRIATED MONEYS IN A

16 SUM EQUAL TO FIVE PERCENT OF THE TOTAL AMOUNT OF SUCH MONEYS TO BE SPENT

17 (TAKING INTO ACCOUNT THE PAYMENT UNDER SUCH SUBTITLE AND THE AMOUNT

18 SPENT BY THE STATE).

19 8. NO MONEYS CONSTITUTING SUCH FUND SHALL BE PERMITTED TO BE USED FOR

20 ANY ACTIVITY OR PURPOSE TO REDUCE THE EXPENDITURE OF THE STATE FOR SUCH

21 ACTIVITY OR PURPOSE TO A LEVEL WHICH IS LESS THAN THE LEVEL OF SUCH

22 EXPENDITURES MAINTAINED BY THE STATE FOR THE FISCAL YEAR ENDING MARCH

23 THIRTY-FIRST, TWO THOUSAND.

24 9. ALL PAYMENTS OF MONEYS FROM THE FUND SHALL BE MADE ON THE AUDIT AND

25 WARRANT OF THE COMPTROLLER.

26 S 6. Section 7-201 of the election law, as amended by chapter 262 of

27 the laws of 1986, the section heading as amended and subdivision 4 as

28 added by chapter 352 of the laws of 1986, subdivision 1 as amended and

29 subdivision 5 as added by chapter 400 of the laws of 1987, is amended to

30 read as follows:

31 S 7-201. Voting and ballot counting machines; examination of. 1. Any

32 person or corporation owning or being interested in any voting or ballot

33 counting machine may apply to have the state board of elections examine

34 such machine. Such applicant shall pay to the board before the examina-

35 tion a fee equal to the cost of such examination, or forty thousand

36 dollars, whichever is less. The state board of elections shall cause the

37 machine to be examined and a report of the examination to be made and

38 filed in the office of the board. Such examination shall include a thor-

39 ough review and testing of any electronic or computerized features of

40 the machine. Such report shall state an opinion as to whether the kind

41 of machine so examined can safely and properly be used by voters and

42 boards of elections at elections, under the conditions prescribed in

43 this article. If the report states that the machine can be so used, and

44 the board after its own examination so determines, the machine {shall}

45 MAY be {deemed} approved{,} and machines of its kind {may be adopted for

46 use at elections} ARE ELIGIBLE TO BE ADOPTED as {herein} provided IN

47 SECTION 7-200 OF THIS TITLE, OR USED AS A BALLOT COUNTING MACHINE FOR

48 ABSENTEE, EMERGENCY OR AFFIDAVIT PAPER BALLOTS. The voting or ballot

49 counting machine shall be examined by examiners or testing laboratories

50 to be selected for such purpose by the board. Each examiner or laborato-

51 ry shall receive compensation and expenses for making an examination and

52 report as to each voting or ballot counting machine examined by him or

53 it. Neither any member of the state board of elections nor any examiner

54 or owner or employee of any testing laboratory, shall have any pecuniary

55 interest in any voting or ballot counting machine. Any form of voting or

56 ballot counting machine not so approved, cannot be used at any election.

Comment 7, on the paragraph above.

The requirement of "thorough review and testing

of any electronic or computerized features" is

excellent, and exceeds federal standards which only

require function tests of certain functions.

However, this excellent requirement is voided by

paragraph 6 below which allows the state Board

of Elections to waive the entire examination.

It is unclear why line 48 above lists only absentee,

emergency, or affidavit paper ballots, and does not

include ordinary paper ballots such as would be

used with precinct-count optical scanners. Is it

intended to omit ordinary paper ballots, or should

the phrase "or other paper ballots" be added?

Comment 8, on the sentence below.

The phrase "or material" in the sentence below

is unclear. It should clearly and without vagueness

refer to any programming, data files, or hardware

of the computerized system.

A. 5--A 6

1 2. When any change is made in the operation or material of any feature

2 or component of any machine which has been approved pursuant to the

3 provisions of this section, such machine must be submitted for such

4 re-examination and reapproval pursuant to the provisions of subdivision

5 one of this section as the state board of elections deems necessary.

6 3. If at any time after any machine has been approved pursuant to the

7 provisions of subdivision one or two of this section, the state board of

8 elections has any reason to believe that such machine does not meet all

9 the requirements for voting machines set forth in this article, it shall

10 forthwith cause such machine to be examined again in the manner

11 prescribed by subdivision one of this section. If the opinions in the

12 report of such examinations do not state that such machine can safely

13 and properly be used by voters at elections under the conditions

14 prescribed by this article, the state board of elections shall forthwith

15 rescind its approval of such machine. After the date on which the

16 approval of any machine is rescinded, no machines of such type may be

17 purchased for use in this state. The state board of elections shall

18 examine all machines of such type which were previously purchased, to

19 determine if they may continue to be used in elections in this state.

20 4. {a.} The state board of elections may authorize, for use on an

21 experimental basis, one or more types of voting equipment not previously

22 approved by such board pursuant to the provisions of this section and

23 may authorize a county board of elections or a city, town or village to

24 rent or borrow a limited number of one such type of equipment for use in

25 a primary, special, general or village election. Authorization for such

26 use of such a machine may be given for all or part of any city, town or

27 village for any such election.

28 5. The board shall deposit all fees collected pursuant to the

29 provisions of subdivision one of this section to the credit of the

30 voting and ballot counting machine examination fund established pursuant

31 to section ninety-two-p of the state finance law.

32 6. THE STATE BOARD OF ELECTIONS MAY, AT ITS DISCRETION, WAIVE ANY PART

33 OF OR ALL OF THE EXAMINATION REQUIRED BY SUBDIVISION ONE OR TWO OF THIS

34 SECTION, UPON SUBMISSION OF CERTIFIED TEST DATA AND REPORTS WHICH VERIFY

35 SYSTEM PERFORMANCE IN A MANNER EQUIVALENT TO THE EXAMINATION REQUIRE-

36 MENTS OF THIS SECTION AND ANY REGULATIONS PROMULGATED PURSUANT TO THIS

37 SECTION.

Comment 9, on the paragraph above.

The phrase "in a manner equivalent" is vague

and likely to prevent consideration of whether

federal certification standards are as rigorous

as the standard in paragraph 1 of this section.

The hundreds of documented failures of

federally-certified systems make it clear that

federal certification is an incomplete and shoddy

process. See also,

Hundreds of documented failures:

http://www.votersunite.org/info/messupsbyvendor.asp

Industry insiders discuss federal certification:

(see especially page 2)

http://www.wishtv.com/Global/story.asp?S=1647598&nav=0Ra7JXq2

Either our voting systems have to be completely

examined and evaluated, and 100% audited and

reconciled for 100% accuracy, or we will have

sham elections.

38 S 7. Section 7-202 of the election law is REPEALED and a new section

39 7-202 is added to read as follows:

40 S 7-202. VOTING MACHINE; REQUIREMENTS OF. 1. A VOTING MACHINE TO BE

41 APPROVED BY THE STATE BOARD OF ELECTIONS SHALL:

42 A. BE CONSTRUCTED SO AS TO ALLOW FOR VOTING FOR ALL CANDIDATES WHO MAY

43 BE NOMINATED AND ON ALL BALLOT PROPOSALS WHICH MAY BE SUBMITTED AND,

44 EXCEPT FOR ELECTIONS AT WHICH THE NUMBER OF PARTIES AND INDEPENDENT

45 BODIES ON THE BALLOT EXCEEDS THE NUMBER OF ROWS OR COLUMNS AVAILABLE, SO

46 THAT THE AMOUNT OF SPACE BETWEEN THE NAMES OF ANY TWO CANDIDATES OF ANY

47 PARTY OR INDEPENDENT BODY IN ANY ROW OR COLUMN OF SUCH MACHINE AT ANY

48 ELECTION IS NO GREATER THAN THE AMOUNT OF SPACE BETWEEN THE NAMES OF ANY

49 OTHER CANDIDATES OF SUCH PARTY OR INDEPENDENT BODY AT SUCH ELECTION;

50 B. PERMIT A VOTER TO VOTE FOR ANY PERSON FOR ANY OFFICE, WHETHER OR

51 NOT NOMINATED AS A CANDIDATE BY ANY PARTY OR INDEPENDENT BODY WITHOUT

52 THE BALLOT, OR ANY PART THEREOF, BEING REMOVED FROM THE MACHINE AT ANY

53 TIME;

54 C. PERMIT VOTING IN ABSOLUTE SECRECY;

A. 5--A 7

1 D. BE CONSTRUCTED SO THAT A VOTER CANNOT VOTE FOR A CANDIDATE OR ON A

2 BALLOT PROPOSAL FOR WHOM OR ON WHICH HE OR SHE IS NOT LAWFULLY ENTITLED

3 TO VOTE;

4 E. BE CONSTRUCTED AS TO PREVENT VOTING FOR MORE THAN ONE PERSON FOR

5 THE SAME OFFICE, EXCEPT WHERE A VOTER IS LAWFULLY ENTITLED TO VOTE FOR

6 MORE THAN ONE PERSON FOR THAT OFFICE, AND IT MUST AFFORD HIM OR HER AN

7 OPPORTUNITY TO VOTE FOR AS MANY PERSONS FOR THAT OFFICE AS HE OR SHE IS

8 BY LAW ENTITLED TO VOTE FOR AND NO MORE, WHILE AT THE SAME TIME PREVENT-

9 ING HIS OR HER VOTING FOR THE SAME PERSON TWICE;

10 F. INDICATE, PRIOR TO THE BALLOT BEING CAST, ALL OFFICES AND BALLOT

11 PROPOSALS FOR WHICH THE VOTER HAS MADE NO SELECTION AND ALSO INDICATE TO

12 THE VOTER, IN THE SAME MANNER, ALL OFFICES FOR WHICH THE VOTER HAS MADE

13 FEWER SELECTIONS THAN THE NUMBER OF CANDIDATES FOR WHOM THE VOTER IS

14 LAWFULLY ENTITLED TO VOTE;

15 G. PROVIDE THE VOTER AN OPPORTUNITY TO PRIVATELY AND INDEPENDENTLY

16 VERIFY VOTES SELECTED AND THE ABILITY TO PRIVATELY AND INDEPENDENTLY

17 CHANGE SUCH VOTES OR CORRECT ANY ERROR BEFORE THE BALLOT IS CAST AND

18 COUNTED;

19 H. BE PROVIDED WITH A "PROTECTIVE COUNTER" WHICH RECORDS THE NUMBER OF

20 TIMES THE MACHINE HAS BEEN OPERATED SINCE IT WAS BUILT AND A "PUBLIC

21 COUNTER" WHICH RECORDS THE NUMBER OF PERSONS WHO HAVE VOTED ON THE

22 MACHINE AT EACH SEPARATE ELECTION;

23 I. BE PROVIDED WITH A LOCK OR LOCKS, OR OTHER DEVICE OR DEVICES, THE

24 USE OF WHICH, IMMEDIATELY AFTER THE POLLS ARE CLOSED OR THE OPERATION OF

25 THE MACHINE FOR SUCH ELECTION IS COMPLETED, WILL ABSOLUTELY SECURE THE

26 VOTING OR REGISTERING MECHANISM AND PREVENT THE RECORDING OF ADDITIONAL

27 VOTES;

Comment 10, on the paragraph above.

This paragraph will give a false sense of security

to people who are not computer-savvy, and open

a door to endless opportunities for fraud for

those who are computer-savvy.

The concept of locks or devices which can

secure a voting system derives from mechanical

lever voting machines and physical ballot boxes

of paper ballots.

In the world of computers, the only way to prevent

operations from occurring is to turn off the system.

However, between the time the poll worker's finger

presses an "off" button and the time when a system

appears to be off, millions of operations can occur.

Also, immediately upon being turned on again, more

millions of operations can occur as the system "comes

up." Programming can be hidden in the system to be

triggered by these shutdown and coming-up processes.

The switching of votes and replacement of ballots

to provide pre-selected outcomes can occur at this

time, followed by self-deletion of the malicious

programming.

Computer fraud is, on a practical level, impossible

to prevent. That is why professional computer

departments rely on independent auditing of records,

and reconciliation of discrepancies, to ensure

correct processing results.

28 J. BE PROVIDED WITH SUFFICIENT SPACE TO DISPLAY THE INFORMATION

29 REQUIRED HEREIN;

30 K. BE PROVIDED WITH A DEVICE FOR PRINTING OR PHOTOGRAPHING ALL COUNT-

31 ERS OR NUMBERS RECORDED BY THE MACHINE BEFORE THE POLLS OPEN AND AFTER

32 THE POLLS CLOSE WHICH SHALL BE A PERMANENT RECORD WITH A MANUAL AUDIT

33 CAPACITY AVAILABLE FOR CANVASSING THE VOTES RECORDED BY THE MACHINE;

34 L. PRODUCE AND RETAIN A VOTER VERIFIED PERMANENT PAPER RECORD WITH A

35 MANUAL AUDIT CAPACITY WHICH SHALL RECORD EACH VOTE TO BE CAST AND WHICH

36 SHALL BE PRESENTED TO THE VOTER FROM BEHIND A WINDOW OR OTHER DEVICE

37 BEFORE THE BALLOT IS CAST;

Comment 11, on the paragraph above.

The requirement for a voter verified permanent

paper record should be specifically for electronic

voting systems. If mechanical lever machines are

determined to retained, they should not be

required to produce voter verified permanent

paper records.

38 M. BE FURNISHED WITH ILLUMINATION SUFFICIENT TO ENABLE VOTERS WHILE IN

39 THE BOOTH TO READ THE BALLOT LABELS;

40 N. BE SUITABLE FOR THE USE OF ELECTION OFFICERS IN EXAMINING THE COUN-

41 TERS SUCH THAT THE PROTECTIVE COUNTERS AND PUBLIC COUNTERS ON ALL SUCH

42 MACHINES MUST BE LOCATED SO THAT THEY WILL BE VISIBLE TO THE INSPECTORS

43 AND WATCHERS AT ALL TIMES WHILE THE POLLS ARE OPEN;

44 O. BE PROVIDED WITH A SCREEN AND HOOD OR CURTAIN WHICH SHALL BE SO

45 MADE AND ADJUSTED AS TO COMPLETELY CONCEAL THE VOTER AND HIS OR HER

46 ACTION WHILE VOTING;

47 P. BE A DIRECT RECORDING ELECTRONIC VOTING MACHINE EQUIPPED WITH AN

48 ELECTRONIC, DIGITAL DISPLAY SCREEN;

49 Q. CONTAIN A DEVICE WHICH ENABLES ALL THE ELECTION INSPECTORS AND POLL

50 WATCHERS AT SUCH ELECTION DISTRICT TO DETERMINE WHEN THE VOTING MACHINE

51 HAS BEEN ACTIVATED FOR VOTING AND WHEN THE VOTER HAS COMPLETED CASTING

52 HIS OR HER VOTE;

53 R. PERMIT THE PRIMARIES OF AT LEAST FIVE PARTIES TO BE HELD ON SUCH

54 MACHINE AT A SINGLE ELECTION, AND ACCOMMODATE SUCH NUMBER OF MULTIPLE

55 BALLOTS AT A SINGLE ELECTION AS MAY BE REQUIRED BY THE STATE BOARD OF

56 ELECTIONS BUT IN NO CASE LESS THAN FIVE;

A. 5--A 8

1 S. BE CONSTRUCTED TO ENABLE A VOTER IN A WHEELCHAIR TO REACH ALL

2 VOTING POSITIONS AND THE VOTE ACTIVATOR DEVICE;

3 T. PERMIT INSPECTORS OF ELECTIONS TO EASILY AND SAFELY PLACE THE

4 VOTING EQUIPMENT IN A WHEELCHAIR ACCESSIBLE POSITION;

5 U. POSSESS THE CAPACITY TO, OR CAPACITY TO BE EASILY MODIFIED SO AS

6 TO, PROVIDE FOR RANKED ORDER VOTING AND CUMULATIVE VOTING;

7 V. PROVIDE A MEANS BY WHICH THE VOTING MACHINE CAN BE TESTED AS TO

8 ABILITY TO FUNCTION PROPERLY AND TO COUNT VOTES CORRECTLY, SUCH THAT ANY

9 SUCH TESTING DEVICE MUST NOT HAVE ANY EFFECT ON ELECTION DAY OPERATIONS

10 IF SUCH VOTING MACHINE MUST BE TESTED DURING THE HOURS OF VOTING;

Comment 12, on the paragraph above.

It is doubtful such a "means" or "device" exists

or would be usable by the personnel who are

responsible for an election.

This paragraph will give a false sense of

security to people who are not computer-savvy.

It should be replaced by a requirement that

any machine that appears to malfunction during

the election day should be taken out of service,

and replaced by the use of emergency paper ballots.

For a list of machine problems noticed by voters, see

http://www.votersunite.org/info/messupsbyvendor.asp

For other types of problems, please see

http://www.votersunite.org/electionproblems.asp

The law should give guidance as to what visible

malfunctions should prompt poll workers to take a

machine out of service. Such guidance could take the

form of a non-exclusive list. Suggestions are:

a. A voter sees his or her vote switched to a different

candidate on the screen.

b. A voter touches a touchscreen "button" for a

candidate, but the screen does not register the vote.

c. The screen when it first appears contains votes

already registered that the voter did not enter.

d. One or more candidates or questions are missing

from the ballot displayed.

e. The wrong ballot is displayed on the screen.

f. The final summary screen does not accurately

contain the voting choices made by the voter.

g. The voter cannot change a vote displayed on the

screen.

h. The voter-verifiable printout does not contain the

same choices that the voter entered on the screen.

11 W. PERMIT ALTERNATIVE LANGUAGE ACCESSIBILITY PURSUANT TO THE REQUIRE-

12 MENTS OF SECTION 203 OF THE VOTING RIGHTS ACT OF 1965 (42 U.S.C.

13 1973AA-1A) SUCH THAT IT MUST HAVE THE CAPACITY TO DISPLAY THE FULL

14 BALLOT SEPARATELY IN EACH OF THE LANGUAGES REQUIRED BY THE FEDERAL

15 VOTING RIGHTS ACT AND ENABLE THE VOTER TO CHOOSE IN WHICH SUCH LANGUAGE

16 THE BALLOT IS DISPLAYED;

17 X. NOT INCLUDE ANY DEVICE OR FUNCTIONALITY POTENTIALLY CAPABLE OF

18 EXTERNALLY TRANSMITTING OR RECEIVING DATA VIA THE INTERNET OR VIA RADIO

19 WAVES OR VIA OTHER MEANS WHILE THE MACHINE IS IN OPERATION DURING AN

20 ELECTION; AND

Comment 13, on the paragraph above.

This paragraph will give a false sense of

security to people who are not computer-savvy.

There is no way that non-technical personnel can

determine whether or not communication devices

are operating during an election. The devices

should be banned outright, and there must be

a requirement for pre-election inspection to discover

and remove them, as well as penalties for their

installation. Any election conducted while such

device is in a machine should be voided.

21 Y. COMPLY WITH SUCH ADDITIONAL REQUIREMENTS PROMULGATED BY THE STATE

22 BOARD OF ELECTIONS.

23 2. THE STATE BOARD OF ELECTIONS SHALL APPROVE, AND THE STATE BOARD OF

24 ELECTIONS SHALL PROVIDE AT EACH POLLING PLACE AT LEAST ONE VOTING

25 MACHINE FOR EACH DIFFERENT BALLOT VOTED AT SUCH POLLING PLACE WHICH, IN

26 ADDITION TO MEETING THE REQUIREMENTS IN SUBDIVISION ONE OF THIS SECTION,

27 SHALL:

28 A. BE EQUIPPED WITH A HAND HELD VOTING DEVICE WITH TACTILE DISCERNIBLE

29 CONTROLS DESIGNED TO MEET THE NEEDS OF VOTERS WITH LIMITED REACH AND

30 LIMITED HAND DEXTERITY;

31 B. BE EQUIPPED WITH AN AUDIO STIMULUS VOTING FEATURE THAT COMMUNICATES

32 THE COMPLETE CONTENT OF THE BALLOT IN A HUMAN VOICE WHICH PERMITS A

33 VOTER WHO IS BLIND OR VISUALLY IMPAIRED TO CAST A SECRET BALLOT USING,

34 AT THE OPTION OF THE VOTER, VOICE ONLY OR TACTILE DISCERNIBLE CONTROLS;

35 AND

36 C. INCLUDE A SIP-AND-PUFF SWITCH VOTING ATTACHMENT.

37 3. THE STATE BOARD OF ELECTIONS SHALL BY REGULATION ESTABLISH ADDI-

38 TIONAL STANDARDS FOR VOTING MACHINES NOT INCONSISTENT WITH THIS CHAPTER.

39 4. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS CHAPTER, THE

40 STATE BOARD OF ELECTIONS MAY SELECT PURSUANT TO SECTION 7-200 OF THIS

41 TITLE AN OPTICAL SCAN PAPER BALLOTS VOTING SYSTEM. SUCH SYSTEM NEED NOT

42 COMPLY WITH THE REQUIREMENTS OF PARAGRAPHS K, O AND P OF SUBDIVISION ONE

43 OF THIS SECTION. THE PAPER BALLOT COMPLETED BY THE VOTER SHALL BE DEEMED

44 TO SATISFY THE REQUIREMENT OF PARAGRAPH L OF SUBDIVISION ONE OF THIS

45 SECTION. IF THE STATE BOARD OF ELECTIONS SELECTS AN OPTICAL SCAN PAPER

46 BALLOT VOTING SYSTEM, A DIRECT RECODING ELECTRONIC VOTING MACHINE WHICH

47 MEETS THE REQUIREMENTS OF SUBDIVISION TWO OF THIS SECTION AND WHICH

48 PRODUCES A VERIFIABLE OR SCANNABLE BALLOT MUST BE AVAILABLE TO VOTERS AT

49 EACH POLLING PLACE.

50 S 8. Subdivision 1 of section 7-205 of the election law, as amended by

51 chapter 262 of the laws of 1986, is amended to read as follows:

52 1. {The board of elections of any county outside the city of New York

53 may adopt, and shall adopt when required by local law in any city or by

54 action of the county legislative body in any county, the use of voting

55 machines for contested primary elections in any or all parts of such

56 city or county for any office or position for which such board is not

A. 5--A 9

1 required to use such machines.} Wherever voting machines are used for

2 primary elections, the board of elections having jurisdiction over

3 elections in the city, county or town concerned shall issue directions

4 for such use for each primary election which shall be in conformity with

5 the provisions of this section and of all other applicable provisions of

6 this chapter and which shall be binding on all election officials in the

7 area involved.

Comment 14, on the section below.

This section on escrow will give a false sense of

security to people who are not computer-savvy.

Imagine that you cannot read numbers or count.

You have money in your hand. Someone offers to keep

it for you. He offers to count it for you, and later

before he returns the money to you he will count

it again and assure you that the amount is the same.

You have no way of confirming what he tells you.

Do you feel secure? That arrangement is more secure

than the escrow requirements in this bill.

This bill’s escrow design requires privatization—it

Delegates the entire procedure to manufacturers or

vendors. The bill should instead require training of

election personnel to make a complete disk image copy,

to know the purpose of each file, and to examine

each file to confirm its correct size and content.

This bill should require a complete disk image copy

to be made, including all files. This should be done

for two reasons. First, data files can contain

malicious programming which can be executed

automatically when the file is used, such as

font files. Second, a complete disk image copy

is needed in order to determine whether additional

programming is (or was) present in the system.

The bill should specify that the escrow copy

must be made after the setup and checkout of the

system for each election, just prior to securing the

computer in preparation for the election.

The bill should require that the making of the

complete disk image copy and its evaluation prior

to escrow storage should be done before observers from

all parties with candidates in the election, after

proper notification. Copies of the complete disk

image copy should be available to such parties.

The bill should require routine evaluation of the

voting system immediately after the election,

and routine comparison to the escrow copy of the

system. Board of Election personnel should know how

to perform these technical tasks, and should perform

them before observers from all parties with candidates

in the election.

As written, the bill mandates secret systems and

places the burden on candidates and parties to sue in

court for the right to verify the integrity of the

equipment (hardware, software, and data) used in

each election.

The bill also mandates the retention of insufficient

information to verify equipment integrity.

8 S 9. The election law is amended by adding a new section 7-208 to read

9 as follows:

10 S 7-208. ESCROW REQUIREMENTS. PRIOR TO THE USE OF ANY ELECTRONIC

11 VOTING MACHINE OR BALLOT COUNTING EQUIPMENT IN ANY ELECTION IN THE

12 STATE, ON OR AFTER SEPTEMBER FIRST, TWO THOUSAND SIX, THE STATE BOARD OF

13 ELECTIONS AND THE LOCAL BOARD OF ELECTIONS USING SUCH ELECTRONIC MACHINE

14 OR BALLOT COUNTING EQUIPMENT SHALL:

15 1. REQUIRE THAT THE MANUFACTURER AND/OR VENDOR OF SUCH EQUIPMENT SHALL

16 PLACE INTO ESCROW WITH THE STATE BOARD OF ELECTIONS A COMPLETE COPY OF

17 ALL PROGRAMMING, SOURCE CODING AND SOFTWARE EMPLOYED BY THE ELECTRONIC

18 VOTING MACHINE OR BALLOT COUNTING EQUIPMENT.

19 2. REQUIRE THAT THE MANUFACTURER AND/OR VENDOR OF SUCH EQUIPMENT FILE

20 WITH THE STATE BOARD OF ELECTIONS AND THE APPROPRIATE LOCAL BOARDS OF

21 ELECTIONS A WAIVER, PREPARED BY THE STATE BOARD OF ELECTIONS, WHICH

22 SHALL WAIVE ALL RIGHTS OF THE VENDOR OR MANUFACTURER TO ASSERT INTELLEC-

23 TUAL PROPERTY OR TRADE SECRET RIGHTS IN ANY COURT OF COMPETENT JURISDIC-

24 TION HEARING A CHALLENGE TO THE RESULTS OF ANY ELECTION AND REQUESTING

25 THAT PROGRAMMING SOURCE CODING, FIRMWARE, AND SOFTWARE AS WELL AS ELEC-

26 TRONIC VOTING MACHINES OR BALLOT COUNTING EQUIPMENT BE TESTED BY INDE-

27 PENDENT EXPERTS UNDER COURT SUPERVISION.

28 3. REQUIRE THAT THE MANUFACTURER AND/OR VENDOR OF SUCH EQUIPMENT FILE

29 WITH THE STATE BOARD OF ELECTIONS AND THE APPROPRIATE LOCAL BOARDS OF

30 ELECTIONS A CONSENT TO HAVING AND COOPERATING IN THE TESTING OF ANY

31 PROGRAMMING, SOURCE CODING, FIRMWARE, OR SOFTWARE, PURSUANT TO AN ORDER

32 OF ANY BOARD OF ELECTIONS OR COURT OF COMPETENT JURISDICTION.

33 4. PROMULGATE RULES AND REGULATIONS PROHIBITING THE USE IN ANY

34 ELECTION IN THE STATE OF ANY SOFTWARE, FIRMWARE, OR SOURCE CODING WHICH

35 HAS NOT BEEN CERTIFIED OR FOR WHICH REQUIRED FILINGS ARE NOT MADE.

36 S 10. The election law is amended by adding a new section 7-209 to

37 read as follows:

38 S 7-209. ELIMINATION OF PUNCH CARD BALLOTS. NOTWITHSTANDING ANY OTHER

39 PROVISION OF LAW, ON OR AFTER SEPTEMBER FIRST, TWO THOUSAND SIX, NO

40 PUNCH CARD BALLOT OR PUNCH CARD VOTING SYSTEM SHALL BE USED IN ANY

41 MANNER IN THE CONDUCT OF ANY GENERAL ELECTION, PRIMARY ELECTION OR

42 SPECIAL ELECTION HELD PURSUANT TO THIS CHAPTER.

43 S 11. Subdivision 3 of section 8-300 of the election law is amended to

44 read as follows:

45 3. No voter shall remain within a voting machine {longer than three

46 minutes or a voting booth longer than five minutes and if he shall

47 refuse to leave after the lapse of such time, he shall be removed by the

48 inspectors} FOR THE PURPOSE OF CAUSING DELAY IN THE VOTING PROCESS.

Comment 15, on the paragraph above.

It can be difficult for poll workers to determine

the cause of a delay in a voting booth. This is one

reason why separate machines for voters with

disabilities may be useful. A voter with a disability

that is invisible to poll workers but which nonetheless

results in a need for additional time could be

harassed by poll workers.

49 S 12. The election law is amended by adding a new section 8-305 to

50 read as follows:

51 S 8-305. ACCESSIBLE VOTING MACHINES; RIGHT TO USE. 1. WHEN ONE OR

52 MORE VOTING MACHINES SERVING AN ELECTION DISTRICT DO NOT MEET THE

53 REQUIREMENTS OF SUBDIVISION TWO OF SECTION 7-202 OF THIS CHAPTER, THE

54 ELECTION INSPECTORS SHALL, AFTER VERIFYING A VOTER`S ELIGIBILITY TO

55 VOTE, INFORM SUCH VOTER OF THE RIGHT TO VOTE ON A VOTING MACHINE THAT

56 MEETS THE REQUIREMENTS OF SUBDIVISION TWO OF SECTION 7-202 OF THIS CHAP-

A. 5--A 10

1 TER, AND SHALL INDICATE WHICH AVAILABLE VOTING MACHINES MEET SUCH

2 REQUIREMENTS.

3 2. IF NO VOTING MACHINE FOR THE ELECTION DISTRICT MEETS THE REQUIRE-

4 MENTS OF SUBDIVISION TWO OF SECTION 7-202 OF THIS CHAPTER, THE ELECTION

5 INSPECTORS SHALL INFORM EACH VOTER OF THE RIGHT TO IMMEDIATELY TRANSFER

6 TO ANOTHER ELECTION DISTRICT WITH AN IDENTICAL BALLOT IN THE SAME POLL-

7 ING PLACE FOR THE PURPOSE OF CASTING A VOTE ON A VOTING MACHINE THAT

8 MEETS THE REQUIREMENTS OF SUBDIVISION TWO OF SECTION 7-202 OF THIS CHAP-

9 TER. UPON REQUEST, THE ELECTION INSPECTORS SHALL TRANSFER A VOTER EXPE-

10 DITIOUSLY BY MAKING A NOTATION ON THE POLL LIST NEXT TO SUCH VOTER`S

11 NAME, STATING "TEMPORARY TRANSFER TO E.D. ". TWO ELECTION INSPEC-

12 TORS, ONE FROM EACH MAJOR POLITICAL PARTY, SHALL THEN PREPARE AND AFFIX

13 THEIR SIGNATURES TO AN OFFICIAL TRANSFER NOTICE WHICH SHALL CONTAIN THE

14 NAME OF THE VOTER, THE ELECTION DISTRICT IN WHICH SUCH VOTER IS REGIS-

15 TERED AND THE ELECTION DISTRICT TO WHICH SUCH VOTER IS TRANSFERRED. THE

16 TRANSFER NOTICE SHALL BE CONVEYED BY AN ELECTION INSPECTOR, POLL CLERK

17 OR ELECTION COORDINATOR TO THE ELECTION INSPECTORS OF THE ELECTION

18 DISTRICT TO WHICH THE VOTER IS TRANSFERRED. IMMEDIATELY THEREUPON THE

19 NAME OF SUCH VOTER SHALL BE ENTERED AT THE END OF THE POLL BOOK FOR THE

20 ELECTION DISTRICT TO WHICH SUCH VOTER IS TRANSFERRED, AND A NOTATION

21 SHALL BE ENTERED NEXT TO SUCH VOTER`S NAME, "TEMPORARY TRANSFER FROM

22 E.D. ". SUCH VOTER SHALL THEN BE PERMITTED TO VOTE ON A VOTING

23 MACHINE THAT MEETS THE REQUIREMENTS OF SUBDIVISION TWO OF SECTION 7-202

24 OF THIS CHAPTER.

25 3. EVERY DULY QUALIFIED VOTER SHALL BE ENTITLED TO VOTE ON A VOTING

26 MACHINE THAT MEETS THE REQUIREMENTS OF SUBDIVISION TWO OF SECTION 7-202

27 OF THIS CHAPTER. A VOTER SEEKING A TRANSFER FOR SUCH PURPOSE SHALL NOT

28 BE REQUIRED TO STATE A REASON THEREFOR OR TO STATE ANY DISABILITY. A

29 TRANSFER PURSUANT TO THIS SECTION IS FOR THE PURPOSE OF THE ELECTION AND

30 SHALL NOT CHANGE THE ELECTION DISTRICT IN WHICH A VOTER IS PERMANENTLY

31 REGISTERED.

32 S 13. The election law is amended by adding a new section 9-211 to

33 read as follows:

34 S 9-211. AUDIT OF VOTER VERIFIABLE AUDIT RECORDS. 1. WITHIN FIFTEEN

35 DAYS AFTER EACH GENERAL, SPECIAL OR PRIMARY ELECTION, AND WITHIN SEVEN

36 DAYS AFTER EVERY VILLAGE ELECTION CONDUCTED BY THE BOARD OF ELECTIONS,

37 THE BOARD OF ELECTIONS OR A BIPARTISAN COMMITTEE APPOINTED BY SUCH BOARD

38 SHALL MANUALLY AUDIT THE VOTER VERIFIABLE AUDIT RECORDS FROM THREE

39 PERCENT OF VOTING MACHINES WITHIN THE JURISDICTION OF SUCH BOARD. VOTING

40 MACHINES SHALL BE SELECTED FOR AUDIT THROUGH A RANDOM, MANUAL PROCESS.

41 AT LEAST FIVE DAYS PRIOR TO THE TIME FIXED FOR SUCH SELECTION PROCESS,

42 THE BOARD OF ELECTIONS SHALL SEND NOTICE BY FIRST CLASS MAIL TO EACH

43 CANDIDATE, POLITICAL PARTY AND INDEPENDENT BODY ENTITLED TO HAVE HAD

44 WATCHERS PRESENT AT THE POLLS IN ANY ELECTION DISTRICT IN SUCH BOARD`S

45 JURISDICTION. SUCH NOTICE SHALL STATE THE TIME AND PLACE FIXED FOR SUCH

46 RANDOM SELECTION PROCESS. THE AUDIT SHALL BE CONDUCTED IN THE SAME

47 MANNER, TO THE EXTENT APPLICABLE, AS A CANVASS OF PAPER BALLOTS. EACH

48 CANDIDATE, POLITICAL PARTY OR INDEPENDENT BODY ENTITLED TO APPOINT

49 WATCHERS TO ATTEND AT A POLLING PLACE SHALL BE ENTITLED TO APPOINT SUCH

50 NUMBER OF WATCHERS TO OBSERVE THE AUDIT.

Comment 16, on the paragraph above.

Notice of the selection process should also

be posted in public in the office of the

county Board of Elections.

Comment 17, on the paragraph above.

The audit should be explicitly allowed to

determine the obvious intent of the voter and

to count all votes.

No audit should be limited to being conducted

in any specific manner, because to determine the

cause and source of discrepancies or fraud may

require various means.

51 2. THE MANUAL AUDIT TALLIES FOR EACH VOTING MACHINE SHALL BE COMPARED

52 TO THE TALLIES RECORDED BY SUCH VOTING MACHINE, AND A REPORT SHALL BE

53 MADE OF SUCH COMPARISON WHICH SHALL BE FILED IN THE OFFICE OF THE STATE

54 BOARD OF ELECTIONS.

Comment 18, on the paragraph above.

All reports of manual audit tallies and their

comparison to machine tallies should be required

to be posted immediately in public in the office of

the county Board of Elections, and should be provided

without charge to the candidates, parties or

independent bodies entitled to appoint watchers.

The law should not force the public to file

FOIL requests to view this information.

These reports must be made, distributed, and posted

in a timely manner before certification of election

results, so that candidates, parties, and independent

bodies have sufficient time to sue for further or

complete audits. No election should be certified

if audits are required but not completed.

55 3. THE STATE BOARD OF ELECTIONS SHALL PROMULGATE, BY REGULATION, A

56 UNIFORM STATEWIDE STANDARD TO BE USED BY BOARDS OF ELECTIONS TO DETER-

A. 5--A 11

1 MINE WHEN A DISCREPANCY BETWEEN THE MANUAL AUDIT TALLIES AND THE VOTING

2 MACHINE TALLIES SHALL REQUIRE A FURTHER VOTER VERIFIABLE RECORD AUDIT OF

3 ADDITIONAL VOTING MACHINES OR A COMPLETE MANUAL AUDIT OF ALL MACHINES

4 WITHIN THE JURISDICTION OF A BOARD OF ELECTIONS. ANY BOARD OF ELECTIONS

5 SHALL BE EMPOWERED TO ORDER THAT ANY SUCH AUDIT SHALL BE CONDUCTED WHEN-

6 EVER ANY SUCH DISCREPANCY EXISTS.

Comment 19, on the paragraph above.

The problem of discrepancies in vote counts

is difficult to solve but crucial to election

integrity and the legitimacy of representative

government.

Because of the ease of falsification of computer

results, the law should require complete 100%

audits of all computerized voting systems, with

100% reconciliation of discrepancies, and 100%

accuracy required.

(Because of the ease of falsifying all computers

of the same type within the state, if there are

errors in the vote counts in one county, similar

errors may be found in all counties.)

7 4. IF A COMPLETE AUDIT SHALL BE CONDUCTED, THE RESULTS OF SUCH AUDIT

8 SHALL BE USED BY THE CANVASSING BOARD IN MAKING THE STATEMENT OF CANVASS

9 AND DETERMINATIONS OF PERSONS ELECTED AND PROPOSITIONS REJECTED OR

10 APPROVED. THE RESULTS OF A PARTIAL VOTER VERIFIABLE RECORD AUDIT SHALL

11 NOT BE USED IN LIEU OF VOTING MACHINE TALLIES.

12 5. NOTWITHSTANDING SUBDIVISION FOUR OF THIS SECTION, IF A VOTING

13 MACHINE IS FOUND TO HAVE FAILED TO RECORD VOTES IN A MANNER INDICATING

14 ELECTRONIC OPERATIONAL FAILURE, THE BOARD OF CANVASSERS SHALL USE THE

15 VOTER VERIFIABLE AUDIT RECORDS TO DETERMINE THE VOTES CAST ON SUCH

16 MACHINE, PROVIDED SUCH RECORDS WERE NOT ALSO IMPAIRED BY THE ELECTRONIC

17 OPERATIONAL FAILURE OF THE VOTING MACHINE.

Comment 20, on the paragraph above.

The law should give guidance as to what

operational failure might consist of, in the form

of a non-exclusive list. Suggestions are:

a. A voter sees his or her vote switched to a different

candidate on the electronic screen.

b. A voter touches a touchscreen "button" for a

candidate, but the screen does not register the vote.

c. The screen when it first appears contains votes

already registered that the voter did not enter.

d. One or more candidates or questions are missing

from the ballot displayed.

e. The wrong ballot is displayed on the screen.

f. The final summary display does not accurately

contain the voting choices made by the voter.

g. The voter cannot change a vote displayed on the

screen.

h. The voter-verifiable printout does not contain the

same choices that the voter entered on the screen.

18 S 14. The election law is amended by adding a new section 16-113 to

19 read as follows:

20 S 16-113. AUDIT OF VOTER VERIFIABLE RECORDS. THE SUPREME COURT, BY A

21 JUSTICE WITHIN THE JUDICIAL DISTRICT, OR THE COUNTY COURT, BY A COUNTY

22 JUDGE WITHIN HIS OR HER COUNTY, ON MOTION OF ANY CANDIDATE OR HIS OR HER

23 AGENT, MAY DIRECT A MANUAL AUDIT OF THE VOTER VERIFIABLE AUDIT RECORDS

24 APPLICABLE TO ANY CANDIDATE RUNNING FOR OFFICE WITHIN SUCH JUDICIAL

25 DISTRICT OR COUNTY WHERE (I) THE UNIFORM STATEWIDE STANDARD PROMULGATED

26 BY REGULATION BY THE STATE BOARD OF ELECTIONS PURSUANT TO SUBDIVISION

27 THREE OF SECTION 9-211 OF THIS CHAPTER WITH RESPECT TO DISCREPANCIES

28 BETWEEN MANUAL AUDIT TALLIES AND VOTING MACHINES TALLIES REQUIRES A

29 FURTHER VOTER VERIFIABLE RECORD AUDIT OF ADDITIONAL VOTING MACHINES OR

30 ALL VOTING MACHINES APPLICABLE TO SUCH ELECTION, OR (II) WHERE EVIDENCE

31 PRESENTED TO THE COURT OTHERWISE INDICATES THAT THERE IS A LIKELIHOOD OF

32 A MATERIAL DISCREPANCY BETWEEN SUCH MANUAL AUDIT TALLY AND SUCH VOTING

33 MACHINE TALLY WHICH CREATES A SUBSTANTIAL POSSIBILITY THAT THE WINNER OF

34 THE ELECTION AS REFLECTED IN THE VOTING MACHINE TALLY COULD CHANGE IF A

35 VOTER VERIFIABLE RECORD AUDIT OF ADDITIONAL VOTING MACHINES OR OF ALL

36 VOTING MACHINES APPLICABLE TO SUCH ELECTION WERE CONDUCTED.

Comment 21, on the paragraph above.

In the professional world of information technology,

100% accuracy of computer results is required at

all times. It is hard to justify why New York

state's elections should be held to a lower standard

when computers are used.

Any discrepancy should be investigated to determine

whether or not people committed errors or fraud,

and also all computer operations should be investigated

to determine whether or not the computer made

errors and whether such errors resulted from

mistakes or intentional fraud.

Because computers can be programmed to give any

result, any margin of victory, and any random pattern

of discrepancies across a county or state, all

discrepancies must be viewed as material, and full

audits with reconciliation of discrepancies and

investigation to determine the cause of the

discrepancies must be made.

The law should require these underpinings of election

integrity, and not delegate this responsibility

to an administrative body.

Comment 22, on the paragraph above.

The law should require all recourse to courts and

all audits to be completed before certification of

election results. Court response should be required

to be both deliberate and timely.

37 S 15. This act shall take effect immediately, provided, however, that

38 sections eleven, twelve, thirteen and fourteen of this act shall take

39 effect July 1, 2006.

.SO DOC A 5A *END* BTXT 2005