February 9, 2006


Today State Commissioner Douglas Kellner briefed representatives of New Yorkers for Verified Voting, Common Cause/NY, NYPIRG, League of Women Voters, Citizen’s Union, Task Force on Election Integrity of Community Church of NY, and other organizations on the status of HAVA implementation regarding the statewide database and selection of new voting systems.


Voting Machine Systems


There is bi-partisan consensus that the State Board of Elections should “do it once and get it right the first time” regardless of HAVA deadlines. The Department of Justice (DOJ), which will enforce HAVA provisions and deadlines, is “vigorously monitoring” New York and is seriously considering litigation. Conversely, the State Board and Attorney General’s office are resisting the idea of agreeing to a consent decree since they fear the imposition of impractical, unworkable deadlines and timelines. New York State is also wants its voting systems to adhere to the federal EAC’s 2005 Voluntary Voting Systems Guidelines.


Impediments to implementation of HAVA in NYS


·        Lack of a definitive and explicit SIP (State Implementation Plan)

·        Insufficient SBOE staff

·        Lack of expertise in the composition of regulations and execution of HAVA


Four Steps


Commissioner Kellner highlighted four main steps that are necessary to implement HAVA. Originally the State plan was to complete the four steps one after another, but the DOJ objects and wants the SBOE to expedite the process.


1.      Drafting and approval of voting system regulations

2.      Certification

3.      Contracting/Procurement process

4.      Acceptance testing and training


1. Drafting and approval of voting system regulations


There is currently a working draft completed by the SBOE staff that has been circulated to the Commissioners and has incorporated some comments from the public comment period. The draft will be presented formally in the SBOE Commissioners meeting on Tuesday, 2/14, and hopefully will be posted for public review on the SBOE website for a minimum of six days prior to its adoption.


2. Certification


Certification will be governed primarily by the SBOE regulations and State Law. The SBOE has started to ask vendors for potential submissions and so far 4 vendors have said they will submit 7 systems:


ES&S -- opt-scan with Automark, DRE

Sequoia -- Push button DRE, touch screen DRE, opt-scan

Liberty -- DRE

Avanti -- DRE


The SBOE has retained Cyber, one of the federal ITAs (Independent Testing Authorities) as a consultant to propose regimens for testing and to advise on the hiring of testing companies. The SBOE staff believes that they have the capacity to only test and certify two voting machine systems at any given time. This process may then inadvertently create an unfair advantage to the voting systems tested first.


Since compliance with HAVA is DOJ’s primary objective and under HAVA accessibility issues are of primary concern, and lever machines are currently not compliant to ADA requirements, there are some alternatives being considered to achieve compliance:


1. Purchase of Automarks for every polling site in New York State to be tabulated at the central office (counted as Emergency ballots) and to be used with lever machines (this may potentially create a disadvantage for NYC which has multiple EDs per polling site)


2. Institute the Vermont telephone-in system where voters must be physically present at the poll site and call in on special Board of Election phones to cast their ballot.


Contracting/Procurement process


Commissioner Kellner is currently suggesting a 21-day period for public hearings at a county level after certification and prior to procurement decisions. This will hopefully allow the public to provide feedback while also prevent County officials from contracting without public input.


Some considerations for procurement by counties:


·        Cost of voting system

·        Ease of use by voters

·        Ease of operations


4. Acceptance testing and training


This area has not been fully addressed and remains a serious concern since each machine purchased is supposed to be tested by a board employee. The SBOE currently does not have enough staff to perform so many acceptance tests since each machine takes about a half day, and perhaps 20,000 machines may be purchased.


There is discussion about contracting out this task to the county Boards of Elections. The fear is that these individuals may not have adequate training or expertise for the task.


Additionally, there was no budget requested by the SBOE to pay for acceptance testing. The SBOE is considering transferring the possible excess funds in the implementation of the statewide database to subsidize the acceptance testing or to fund a statewide training program for counties to perform their own acceptance testing.


Recommendations suggested by Commissioner Kellner


Advocates should address specific aspects of the regulations and suggest language that maybe incorporated into the regulations. The lawyers working on the  regulations may not have computer security/accessibility/etc expertise.


Advocates need to review the federal EAC 2005 Voluntary Voting System Guidelines, and note which areas are already incorporated in New York’s regulations or statutes, or provisions that New York should add, delete, or change.


Advocates should contact the editorial boards of their newspapers to stress the need to implement a quality voting system instead of one that is done fast but haphazardly.




It is speculated that New York may have to return HAVA Section 102 money


Statewide Database


New York State will institute the ‘bottom up’ approach in creating a statewide database that will be modeled after Washington State (a system developed in consultation with Microsoft). Counties will retain control over their local list and determine eligibility accordingly. Local jurisdictions will also be responsible for upload into the statewide system (which will be either in real time or within half an hour). The technical issue that remains is the compatibility of the roughly eight different registration systems in use throughout the state since each interface needs to be tailored. The State Board of Elections is considering incurring the cost for statewide compatibility of the database.


The database is not expected to be in use by the November elections, although counties are encouraged to upload local voter databases to the statewide system. The statewide voter registration database is expected to be in place by the spring of 2007.


A minor legal issue that is worth noting is the inconsistent determination of who is registered to vote. No county in New York State has a fixed and completely accurate list due to the provisional ballot rules that allows for challenges on Election Day.


Another issue is the verification and identification requirements. Although Kellner recognized that these are still active issues, he also emphasized the minimal impact of the statewide database system because the identifications are largely done by inspectors on Election Day. Additionally, Affidavit ballots that were cast due to limitations by the identification requirements were not a significant proportion of the total ballots cast.