Kudos to Brad Friedman for making a good call on a subtle point in his comment on my posting about Bo Lipari‘s coverage of the NY State testing of voting systems. Brad objects to my statement that lever machines are not compliant with the Help Amercia Vote Act (HAVA).

And rightly so! The bad news about the adjective “HAVA compliant” is that people can and do disagree about the interpretation of that Act of Congress. The good news is that the noun “HAVA compliance” is well defined by facts on the ground, if not in the Act itself.

Those facts on the ground are composed of each state’s implementation of its HAVA compliance plan, under the oversight of the U.S. Department of Justice. The DoJ has for years been working with states, including the lever-machine states of NY and CT, on each state’s HAVA compliance plan. Those plans in NY include the use of machine-counted paper ballots, some hand-marked, and some from ballot marking devices that provide enhanced access for voters who are unable or unwilling to mark paper ballots by hand. Those plans do not include the continued of lever machines.

So we can say that lever machines are not part of HAVA-compliance (noun) in NY or CT.

Further, I got the impression, from talking to folks involved in HAVA compliance program implementations, that there was no chance of a compliance program being approved if it was based on the continued use of lever machines. If true, that might well based on what Brad would consider a misinterpretation of HAVA.

Would it be possible for a state to have an acceptable HAVA compliance plan that included lever machines? Perhaps a plan that included electronic DREs for enhanced access, lever machines (which are mechanical direct-record election devices), and tools for combining the results from both into an auditable election result? Possibly, but likely we’ll never know, as the last few HAVA-compliance program engines pull into the station at the end of ride.

— EJS

4 responses to Levers, HAVA, and “Compliance”

  1. Brad Friedman

    With all due respect, John. You’re hedging the initial error a bit here. Busy for the moment, so don’t have time to go get the EAC’s finding on this (or was it DoJ’s?), but I’ll try to find it for you. Either way, you said:

    “The bad news about the adjective “HAVA compliant” is that people can and do disagree about the interpretation of that Act of Congress.”

    There’s really no legitimate disagreement. Cloudy the issue by declaring it a murky, gray area, only misleads. The law, HAVA, is quite clear if you read it. There is no ban on lever machines. Zero, none, nada. Nothing in HAVA makes them non-compliant in any way.

    Again, setting aside whether I, or you, or anybody else likes them or not, given what you’re advocating for here, it’s important to very accurate and very transparent in that advocacy. To that end, I’d still request you add a CORRECTION to your original post on this (though this continued conversation on the point is also appreciated, of course), so folks will see that correction if they go straight to that previous article.

    “The good news is that the noun “HAVA compliance” is well defined by facts on the ground, if not in the Act itself.”

    Here’s where the bet gets thoroughly hedged 🙂 If NY decides they wish to get rid of the levers, that’s up to them (though I understand many counties and many voters are very much against it). But suggesting, in any way, that levers are not within HAVA compliance does a disservice to the issue. If NY’s plan calls for getting rid of them, that’s fine, but it’s not due to HAVA compliance in any way.

    Mind you, I’m a big fan of Bo Lipari and the work he’s doing out there. But I’m also a fan of those who are expressing their advocacy in favor of keeping the levers, versus going to the failed secret vote counting of op-scans, and worse, on systems which use secret software to do their secret tabulating.

    Therefore, I think, to be fair to all sides, it’s important to get this issue right, so as not to advocate unfairly to the disadvantage of either side in this storied dispute (the dispute about whether to get rid of the levers or not, as opposed to the dispute about HAVA compliance, about which there really is none if you read the law, as I said.)

  2. Andi Novick

    John,
    I’m on the ground here in New York and appreciate Brad’s correcting the record and urge you to do so as well. There’s enough misinformation and use of language intended to distort the truth (like referring to levers as mechanical DREs). DREs like optical scanners, are software-based machines which as you know are secretly programmed and equally vulnerable to undetectable, outcome determinative fraud. But lever machines are mechanical and their inner workings, as contrasted with software, is visible. So any fraud would be seen. Also fraud is far more difficult to commit on a lever (very labor intensive- unlike software, systematic exploits are impossible on levers and unlike software, vote switching is impossible with levers). All you can do to mess w/a lever is cause it to undervote, but then that would be visible when you open the lever and you’d be able to tell if the manipulation was outcome determinative-none of which is possible with any software based machine.

    You know SBoE Commissioner (who now along with Bo Lipari advocates for the concealed vote counting of the optical scanner) understands NY’s lever voting system is far more secure and has perhaps said it best in a quote from 2005. He said:

    “Machines similar to today’s lever machines were at the center of a voter-fraud scandal in the 1940s. The machines had mechanical counters similar to odometers that recorded how many votes were cast for each candidate. Some of the people responsible for counting the votes used pen knives to change the counters and thus the votes. Similarly, the counters used on today’s machines could be adjusted prior to the opening of polls to provide an artificial advantage to a candidate. Unlike e-voting machines, which have all of its inner-workings hidden away as code, the working parts of lever machines are exposed to the world. The fraud of the 1940s was uncovered because volunteers from the polling stations noticed that the numbers on their machines at the counting location were not the same as when they left the polling station. Similarly, any tampering with a lever machine today would be plainly visible to the volunteer preparing it for poll opening. Becoming aware of fraud on an e-voting machine would be much more difficult, because so much of their inner-workings are invisible to all but the software programmers.

    Fighting fraud carried out by code is also particularly expensive. Some e-voting systems run on 150,000 lines of code and to uncover whether fraud has occurred, or by whom and how, requires an army of programmers, a number of years, and millions of dollars. Even then, there is no guarantee that their examination will produce results.”

    That’s it in a nutshell. A democratic voting system must enable enough people to SEE contemporaneously with every step of the process (not some after the fact review) in order to prevent fraud and of course must build in enough of those safeguards to defeat fraud as much as possible. NY’s hand count and lever count system do just that so that the count on election night is a verified complete count- conducted under uninterrupted public scrutiny before everyone splits for the night.

    And as for HAVA compliance, that’s another one of those ways I think we all sometimes get trapped with– speaking the language of those who would oppress us w/concealed vote counting. HAVA as we know was an Orwellian corrupt law that set at best minimal standards for voting systems. In fact its standards are so below NY’s standards as established over the last century plus as to be unconstitutional. I would rather talk in terms of a voting system that is democracy-compliant. A democracy-compliant system would insist that every step of the electoral process be observable and scrutinized. Indeed in NY we recognized (back in 1896) that if any step of the process was in the exclusive control of election officials, it would render “voting a useless formality as it depends upon the will of the inspectors of election as to who shall hold the offices, and not upon the vote of the people.”

    Unfortunately NY’s new law (ERMA), mandating that we replace our levers with computers, requires that two very critical steps of the election be performed outside of public view. The vote counting isn’t observable even by election officials (secretly programmed software you know, unlike our levers that are publicly programmed in the presence of observers and which, being mechanical, aren’t mutable the way software is) and then under ERMA we’re supposed to verify those exploitable software results using paper ballots that have been held in the exclusive control of election officials– another step- just like the law in NY pre-1896– in the exclusive unobserved control of election officials. According to the constitutional precedence in NY both those steps (or either) renders voting a useless formality. That’s the new law the State and Bo Lipari support.

    The Election Transparency Coalition, is fighting hard to try to stop ERMA and have it declared unconstitutional- You can see a video about all this at our site: http://nylevers.wordpress.com/
    If we succeed there will be one court in the United States of America that will have said- concealed vote counting is unconstitutional. Wouldn’t that be great for the rest of the nation. They can take that one and run with it cause no other state is going to do that given that they’re all stuck with these theft-enabling computers.

    Also you probably know this but HAVA mentions 2 voting systems expressly that are acceptable so long as they comply with those 5 minimal requirements of HAVA. Those 3 systems are levers, DREs and scanners (hand counting also complies). Of course the feds don’t go after states for using non complying DREs or scanners – they just sued NY for not being HAVA compliant. And we weren’t in 2006 when we were sued. We only had one BMD/county. But now we have a BMD in every poll site so that combined with our levers satisfies the sub-minimal requirements of HAVA.

    Hope you will correct your post and if you have any questions I’m at andi@etcnys.org.

    Thanks
    andi novick

  3. jsebes Post Author

    Thanks to Andi and Brad for a wealth of info on lever machines, HAVA, PA, and NY, and specific information and correction on how lever machines are not banned by HAVA.

    Brad pointed me to a letter from the PA’s GC to EAC (http://moritzlaw.osu.edu/electionlaw/litigation/documents/vansickleexhibitg.pdf) that documents part of a conversation in which EAC officials seemed to reverse course on previous statements that HAVA required replacement of lever machines. Whether the “HAVA does not ban lever machines” (my paraphrase) statement ever got published as a policy change applicable to all states, I wish I knew.

    That still leaves me puzzled by the accounts I’ve heard of Federal dings on state HAVA plans specifically w.r.t. lever machines. But for NY at least, Andi’s pointer to NY State law (good summary at http://www.nyvv.org/doc/NYSLeverMachines.pdf) explains why in NY at least lever machines were not part of the HAVA compliance plan.

    Finally, that PA letter points out the sticking point w.r.t. HAVA and lever machines: “Section 301(a)(2) of HAVA requires each voting system to ‘produce a permanent paper record with manual audit capacity. . . .’ [See 42 U.S.C. § 15481(a)(2)].” Of course, that is not (as many have pointed out) tantamount to banning lever machines, but it raises questions about how a state HAVA compliance program would meet that requirement. But note! the first generation paperless DREs were part of HAVA compliance programs that passed muster with Federal review. So it’s possible that lever machines could have as well, at least for any state’s HAVA plans that were formulated after late 2005 — if there were any. So, certainly HAVA doesn’t ban lever machines, and there is no specific reason to suppose a state’s use of them would not be HAVA compliant – and yet we don’t have a single case of a HAVA compliance program including lever machines. Puzzling!

    — EJS

  4. Brad Friedman

    Not puzzling at all. HAVA referred to the federal money that could be spent on new voting systems. I believe the case could be made that HAVA would not give money to new lever systems. But it, in no way banned them.

    There were many interested in getting rid of them for both nefarious (lots of corporate handout $!) and not-nefarious reasons, so that had a lot to do with the completely mythical notion that they were “banned” by HAVA when they weren’t. But the law was always quite clear on that.

    I’d also point you to VotersUnite’s “Mythbreakers: Facts About Electronic Elections – Essential Information for Those Entrusted with Making Decisions about Election Systems in the United States” which set out very early on to correct much of the nonsense that was being circulated about HAVA from it’s very early days:
    http://www.votersunite.org/MB2.pdf

    Beyond that, I’d still request that you add a transparent correction to your original article in which you mistated that levers were not HAVA compliant.