Note -

In this copy of bill S6207 from the Senate web site,

the pages are numbered, and within each page the lines are numbered.

New language is in CAPITAL LETTERS.

Language to be omitted is {in braces and very small}

I have made 15 comments which are in this large typeface.

Where I have suggested language to be included in the

bill, the words are bold underlined.

--Teresa Hommel, www.wheresthepaper.org

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

________________________________________________________________________

6207

I N S E N A T E

February 20, 2004

___________

Introduced by Sen. MORAHAN -- read twice and ordered printed, and when

printed to be committed to the Committee on Elections

AN ACT to amend the election law, in relation to enacting the "voting

machines modernization act of 2004"; and providing for the repeal of

certain provisions upon expiration thereof

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 machines modernization act of 2004".

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"

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

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

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

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

15 the title shall be printed AND/OR DISPLAYED in the largest {type}

16 DISPLAY which it is practicable to use in the space provided.

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

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

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

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

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

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

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

24 BALLOT SHALL SATISFY ALL REQUIREMENTS AND STANDARDS SET FORTH PURSUANT

25 TO THE FEDERAL HELP AMERICA VOTE ACT OF 2002.

26 S 4. Section 7-121 of the election law, as added by chapter 352 of the

27 laws of 1986, is amended to read as follows:

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

{ } is old law to be omitted.

LBD16051-11-4

S. 6207 2

1 S 7-121. Ballots which are counted by machine. A board of elections

2 may provide, by resolution adopted at least two months before an

3 election at which voting machines are used, that all ballots cast for

4 such election, other than on the voting machines, shall be counted by a

5 machine of a type approved by the state board of elections and that all

6 ballots printed for use at such election may be printed and arranged in

7 a manner which would permit them to be counted by such machine;

8 PROVIDED, HOWEVER THAT NO PUNCH CARD BALLOTS OR PUNCH CARD BALLOT COUNT-

9 ING MACHINES SHALL BE PERMITTED BY ANY BOARD OF ELECTIONS AFTER NOVEMBER

10 FIRST, TWO THOUSAND SIX.

11 S 5. Section 7-200 of the election law, as amended by chapter 262 of

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

13 1986, is amended to read as follows:

14 S 7-200. Adoption and use of voting {machine} MACHINES. 1. {The board

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

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

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

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

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

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

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

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

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

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

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

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

27 and counting votes cast at such elections.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

42 nineteen hundred eighty-six.

43 3.} THE STATE BOARD OF ELECTIONS, BY A MAJORITY VOTE OF SUCH BOARD,

44 SHALL ADOPT MINIMUM STANDARDS FOR VOTING MACHINES, WHICH MEET THE

45 REQUIREMENTS AND SPECIFICATIONS OF THIS CHAPTER

Comment 1 --

The 3 lines above delegate responsibility to the State Board of Elections to set all standards.

The law should specify minimum voting system standards for security (verifiable accuracy), and let the Board of Elections set higher standards.

The law should specify that voting systems be accessible and identify who has responsibility for ensuring it.

AND OTHER SPECIFICATIONS

46 OF SUCH BOARD TO BE USED AT ALL GENERAL, SPECIAL AND PRIMARY ELECTIONS

47 CONDUCTED PURSUANT TO THIS CHAPTER. THE STATE BOARD OF ELECTIONS MUST

48 CERTIFY THAT A VOTING MACHINE MEETS SUCH MINIMUM STANDARDS BEFORE IT CAN

49 BE USED BY ANY COUNTY, CITY, TOWN OR VILLAGE AFTER NOVEMBER FIRST, TWO

50 THOUSAND SIX. ALL VOTING MACHINES CERTIFIED BY THE STATE BOARD OF

51 ELECTIONS SHALL BE CONTRACTED FOR THROUGH A COMPETITIVE BIDDING PROCESS.

52 NOTHING IN THIS SUBDIVISION SHALL BE DEEMED TO PREVENT THE STATE BOARD

53 OF ELECTIONS FROM CERTIFYING MORE THAN ONE VOTING MACHINE IN THE MANNER

54 PROVIDED BY THIS SECTION.

55 2. A. THERE IS HEREBY ESTABLISHED, WITHIN THE STATE BOARD OF

56 ELECTIONS, A CITIZEN`S ELECTION MODERNIZATION ADVISORY COMMITTEE. THE

S. 6207 3

1 CITIZEN`S ELECTION MODERNIZATION ADVISORY COMMITTEE SHALL RECOMMEND

2 VOTING MACHINE SELECTION CRITERIA AND SPECIFICATIONS.

3 B. SUCH COMMITTEE SHALL BE COMPOSED OF ELEVEN MEMBERS AS FOLLOWS:

4 (1) FOUR REPRESENTATIVES OF BOARDS OF ELECTIONS APPOINTED BY THE

5 GOVERNOR, UPON ADVICE AND CONSENT OF THE SENATE;

6 (2) THE DIRECTOR OF THE OFFICE FOR TECHNOLOGY;

7 (3) TWO MEMBERS APPOINTED BY THE TEMPORARY PRESIDENT OF THE SENATE;

8 (4) TWO MEMBERS APPOINTED BY THE SPEAKER OF THE ASSEMBLY;

9 (5) THE STATE ADVOCATE FOR PERSONS WITH DISABILITIES; AND

10 (6) ONE INDIVIDUAL WITH DISABILITIES APPOINTED BY THE GOVERNOR, UPON

11 ADVICE AND CONSENT OF THE SENATE.

Comment 2 --

The 13 lines above establish a CITIZEN`S ELECTION MODERNIZATION ADVISORY COMMITTEE with no independent (not state officials or employees) computer professionals or computer scientists.

In the professional world, computer purchases are made after in-depth arms-length technical evaluation. The certification process at the federal level is not arms-length (since vendors pay for their own evaluation, and the entire process is secret) and not in-depth (see the I-Team Interview with Microvote executives, NY Times and Mercury News articles, and lists of voting system failures). For this reason there should be enough independent computer professionals in the advisory committee who have experience with such evaluations to conduct such an evaluation of voting systems.

12 C. SUCH COMMITTEE WILL MAKE A PRELIMINARY REPORT OF ITS RECOMMENDA-

13 TIONS TO THE STATE BOARD OF ELECTIONS ON OR BEFORE NOVEMBER FIFTEENTH,

14 TWO THOUSAND FOUR TO ADVISE THE STATE BOARD OF ELECTIONS HOW TO EMPLOY

15 NEW VOTING TECHNOLOGIES WHICH MEET THE REQUIREMENTS OF THE FEDERAL HELP

16 AMERICA VOTE ACT OF 2002 AND WHICH BEST SERVE THE NEEDS OF THE CITIZENS

17 OF THIS STATE, AND SHALL MAKE A FINAL REPORT THEREON TO THE STATE BOARD

18 OF ELECTIONS ON OR BEFORE DECEMBER THIRTY-FIRST, TWO THOUSAND FOUR.

Comment 3 --

The 7 lines above set dates for completion of work.

These dates may have to be changed to enable the committee to have sufficient time to perform the work.

19 3. THE STATE BOARD OF ELECTIONS SHALL, PURSUANT TO SECTION ONE HUNDRED

20 SIXTY-THREE OF THE STATE FINANCE LAW, ENTER INTO CONTRACTS OR PROCURE-

21 MENT ARRANGEMENTS FOR THE PURCHASE OF VOTING MACHINES AND SHALL PROVIDE

22 SUCH VOTING MACHINES TO ANY COUNTY, CITY OR TOWN. ANY COUNTY, CITY OR

23 TOWN WHICH TAKES POSSESSION OF VOTING MACHINES FROM THE STATE BOARD OF

24 ELECTIONS SHALL THEREAFTER OWN SUCH VOTING MACHINES. NOTHING IN THIS

25 SECTION SHALL BE CONSTRUED TO REQUIRE THE STATE BOARD OF ELECTIONS TO

26 PROVIDE A COUNTY, CITY OR TOWN WITH ALL VOTING MACHINES IT SHALL

27 REQUIRE.

28 4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ANY VOTING MACHINE

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

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

31 OCTOBER THIRTY-FIRST, TWO THOUSAND SIX.

32 5. For five years after any voting machine of a type approved by the

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

34 y-six is first used in any election district, the COUNTY, city or town

35 which purchased such machine shall provide a model of such voting

36 machine for each polling place in which any such election district is

37 located. Such models shall meet the standards set forth in regulations

38 promulgated by the state board of elections.

39 {4.} 6. Whenever there are more offices to be elected than can be

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

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

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

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

44 voters of the same election district.

45 7. THE STATE BOARD OF ELECTIONS SHALL PROMULGATE RULES AND REGULATIONS

46 AS MAY BE NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS SECTION.

47 S 6. Section 7-202 of the election law is amended by adding a new

48 subdivision 6 to read as follows:

49 6. ALL VOTING MACHINES SHALL PRODUCE AND RETAIN A VOTER VERIFIED

50 PERMANENT PAPER RECORD WITH A MANUAL AUDIT CAPACITY WHICH SHALL RECORD

51 EACH VOTE TO BE CAST AND WHICH SHALL BE DISPLAYED TO THE VOTER FROM

52 BEHIND A WINDOW OR OTHER DEVICE BEFORE THE BALLOT IS CAST.

Comment 4 --

The 4 lines above describe one way that voter-verified paper ballots can be produced. The description of the window mechanism is fine but prevents the use of modular voting systems, such as from Populex or the Open Voting Consortium.

These lines could be revised as follows, with suggested new language bold underlined:

49 6. ALL ELECTRONIC VOTING MACHINES SHALL PRODUCE AND RETAIN A VOTER VERIFIED

50 PERMANENT PAPER RECORD WITH AN INDEPENDENT MANUAL AUDIT CAPACITY WHICH SHALL RECORD

51 EACH VOTE TO BE CAST AND WHICH SHALL BE DISPLAYED TO THE VOTER FROM

52 BEHIND A WINDOW OR OTHER DEVICE BEFORE THE BALLOT IS CAST, OR WHICH SHALL BE DISPLAYED TO THE VOTER BY OTHER METHODS OR MECHANISMS THAT MAY BE DEVELOPED AND WHICH SHALL ENABLE THE VOTER TO VERIFY THE VOTES ON THE PERMANENT PAPER RECORD BEFORE CASTING THE BALLOT.

Comment 4a --

Wireless communication devices in vote recording and vote tabulating equipment must be banned.

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

54 as follows:

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

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

S. 6207 4

1 STATE, ON OR AFTER NOVEMBER FIRST, TWO THOUSAND SIX, THE STATE BOARD OF

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

3 OR BALLOT COUNTING EQUIPMENT SHALL:

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

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

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

7 VOTING MACHINE OR BALLOT COUNTING EQUIPMENT.

Comment 5 --

Line 6 above should be expanded to include words that cover all kinds of programming, regardless of terminology:

ALL PROGRAMMING, INCLUDING BUT NOT LIMITED TO FIRMWARE, SOURCE CODING

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

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

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

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

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

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

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

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

16 PENDENT EXPERTS UNDER COURT SUPERVISION.

Comment 6 --

Lines 14-16 should be expanded to include words that cover all kinds of programming, regardless of terminology, and to include examination as well as testing of the equipment:

14 THAT ALL PROGRAMMING, INCLUDING BUT NOT LIMITED TO SOURCE CODING, FIRMWARE, AND SOFTWARE AS WELL AS ELEC-

15 TRONIC VOTING MACHINES OR BALLOT COUNTING EQUIPMENT BE EXAMINED AND TESTED BY INDE-

16 PENDENT EXPERTS UNDER COURT SUPERVISION.

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

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

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

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

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

Comment 7 --

Lines 19-21 should be expanded to include words that cover all kinds of programming, regardless of terminology, and to include examination as well as testing of the equipment:

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

20 PROGRAMMING, INCLUDING BUT NOT LIMITED TO SOURCE CODING, FIRMWARE, OR SOFTWARE, PURSUANT TO AN ORDER

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

Comment 7a --

The law must also recognize that election procedure must be open to public inspection, and must therefore require open source programming. The law should require that all programming used in vote recording and vote tabulating computers, including but not limited to source coding, firmware, or software, must be posted on the web site of the state Board of Elections to enable the public to read it. Any errors and security flaws in the programming that are discovered by the public and brought to the attention of the state Board of Elections must be sent immediately to the vendor for evaluation and correction, and appropriate changes made prior to subsequent use of the systems.

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

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

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

Comment 8 --

The requirements in lines 22-24 need enforcement provisions, including who has responsibility for inspection and what the penalties are for violation. Also the required filings should be listed.

25 S 8. The election law is amended by adding a new section 9-211 to read

26 as follows:

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

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

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

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

31 SHALL MANUALLY AUDIT THE VOTER VERIFIABLE AUDIT RECORDS FROM THREE

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

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

Comment 9 --

At the end of line 33 above, the following should be added

CONDUCTED IN PUBLIC AT A TIME AND PLACE PUBLISHED ONE WEEK IN ADVANCE IN AT LEAST ONE LOCAL NEWSPAPER, AND POSTED IN A PUBLICLY VISIBLE LOCATION AT THE BOARD OF ELECTIONS

.

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

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

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

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

38 JURISDICTION.

Comment 10 --

Before the period on line 38 above, the following should be added

AND SHALL PUBLISH NOTICE ONE WEEK IN ADVANCE IN AT LEAST ONE LOCAL NEWSPAPER AND SHALL POST NOTICE IN A PUBLICLY VISIBLE LOCATION AT THE BOARD OF ELECTIONS

SUCH NOTICE SHALL STATE THE TIME AND PLACE FIXED FOR SUCH

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

40 MANNER, TO THE EXTENT APPLICABLE,

Comment 11 --

After the second comma on line 40 above, the following should be added

BY HAND OR IN THE SAME MANNER

AS A CANVASS OF PAPER BALLOTS. EACH

41 CANDIDATE, POLITICAL PARTY OR INDEPENDENT BODY ENTITLED TO APPOINT

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

43 NUMBER OF WATCHERS TO OBSERVE THE AUDIT.

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

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

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

47 BOARD OF ELECTIONS.

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

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

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

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

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

53 WITHIN THE JURISDICTION OF A BOARD OF ELECTIONS.

Comment 12 --

The law should specify minimum accuracy standards for security (verifiable accuracy), and let the Board of Elections set higher standards.

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

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

56 AND DETERMINATIONS OF PERSONS ELECTED AND PROPOSITIONS REJECTED OR

S. 6207 5

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

2 NOT BE USED IN LIEU OF VOTING MACHINE TALLIES.

3 5. NOTWITHSTANDING SUBDIVISION THREE OF THIS SECTION, IF A VOTING

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

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

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

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

8 OPERATIONAL FAILURE OF THE VOTING MACHINE.

Comment 13 --

Line 5 above should be expanded as follows.

ELECTRONIC OPERATIONAL FAILURE OR MALFUNCTION

Comment 14 --

The law should give guidance as to what election integrity consists of. One reason for using computers is for their accuracy. Why not require 100% accuracy?

Comment 15 --

All polling places must be required to have emergency paper ballots on hand for use when and if the electronic voting systems appear to fail (when voters notice that their choices are not accepted or are changed by the machine, or not all races are shown on the screen, etc.)

9 S 9. This act shall take effect immediately, provided, however, that:

10 (a) sections six and eight of this act shall take effect November 1,

11 2006; and

12 (b) subdivision 2 of section 7-200 of the election law, as added by

13 section five of this act, shall expire and be deemed repealed January 1,

14 2005.

.SO DOC S 6207 *END* BTXT 2003