In a cautious step toward improving election technology and complying with a federal court order, every polling place in New York state will feature one electronic ballot marking device on Nov. 4 that lets voters make selections on a touchscreen and then prints out a paper ballot that is counted by hand.
Anyone can use the new electronic machines, but their primary target audience is disabled people. Using New York state's old-fashioned lever machines is difficult for people who aren't able to see the choices or flip the levers. By contrast the electronic ballot marking device, or BMD, offers an audio feature for the visually impaired, a push-button device for people with limited manual dexterity, and what's called a "sip-puff" device for voters who can use their mouths but do not have any use of their hands. What's more, the desk-level BMD machine is a lot easier to reach for a person who uses a wheelchair, or who needs to sit down while voting. Based on U.S. Census figures, it appears that around 1 million voters across New York state could benefit from the new device.
The lever machines on which New Yorkers have voted for decades will still be available for use next week. But this is supposed to be their last election. In fact, according to the Help America Vote Act of 2002 (HAVA) – aimed at avoiding another voting debacle like the one in Florida in 2000 – they were to have disappeared years ago. Among other things, HAVA offered states federal money to replace aging voting technology.
But the Empire State is years behind schedule in complying with HAVA. First, state legislators took a long time agreeing on how to implement HAVA, finally deciding not to select one statewide system but to allow each county to pick its own voting device. Then, as the clock ticked, the state Board of Elections had to come up with a detailed testing regimen so it could vet the machines that the counties would be allowed to buy. Many complications arose with that effort; at one point, a firm hired by the state to perform quality testing on the voting machines was found to have been decertified by the Federal Elections Commission. Meanwhile, the Justice Department grew impatient with New York's delays and went to court to force compliance with HAVA, putting millions of dollars in federal funding at risk and – according to one judge's threat – exposing state elections officials to possible jail time for contempt. Only one other state, Wisconsin, waited as long as New York did to implement the voting machine measures called for by HAVA.
Last December, U.S. District Judge Gary Sharpe from New York's Northern District instituted new requirements. Finding that New York state had "failed substantially to comply" with previous court orders and HAVA itself, Sharpe ordered that the state meet two deadlines. By fall 2008, each polling place was to offer voters a ballot marking device "accessible to persons with disabilities" that would produce paper ballots to be counted by hand. By the fall of 2009, the lever machines are supposed to be replaced by a combination of BMDs and optical scanners, which read and tally votes from the sheets created by the BMDs.
So far, the 2008 requirement is being met. The ballot marking devices were in place for the September primary. Turnout was light. Only 1,491 voters statewide and 851 in the city used the new machines. Next week, says New York State Board of Elections spokesman Bob Brehm, "We expect very high turnout. It's anyone's guess how many people will use the BMDs."
Rima McCoy, the voting rights coordinator at the Center for Independence of the Disabled NY (CIDNY), says the BMDs are "a vast improvement over the lever machines because it gives people a chance to experience voting in private." But their implementation leaves something to be desired, she says, adding, "One of the reasons is pollworkers are not trained, not prepared. Some are afraid of the machine." A CIDNY survey conducted on Primary Day found problems at most of the 24 New York City polling places visited: At John Jay College there was no place to plug in the machine, at Coalition High School an election worker was so frustrated with the BMD that she said she wanted to blow up the machine, and at a few locations workers erroneously said that non-disabled voters could not use the BMDs. The machines were sometimes placed among tables or other furniture in a way that made them inaccessible, while at three schools, the BMDs did not work for at least part of Primary Day, according to the CIDNY report. The accessibility of polling places themselves is also an issue, says CIDNY; its survey found that 21 of the 24 sites surveyed had features that made it difficult for the disabled to get access.
The problems with the BMDs seen on Primary Day could be magnified on Election Day, when the presidential race is expected to draw very high turnout. An even greater challenge faces local elections officials in 2009, when the plan is for everyone to vote on a BMD and pass their ballot through an optical scanner.
First, however, the state Board of Elections has to certify scanners for the counties to purchase, and that's not going to be easy. In late July, the state board began stating in its weekly progress reports to Judge Sharpe that "activities and progress toward HAVA compliance are in jeopardy per the project timeline." According to the most recent progress report, the two firms vying to have their optical scanners approved by New York state – Sequoia Voting Systems and Election Systems & Software – have been told to correct scores of problems in their devices and related materials. Sequoia, for instance, has 104 discrepancies in its source code and ES&S has 174 discrepancies in its documentation, according to the state board. Previous progress reports indicated that the board wasn't satisfied with SysTec, the firm doing the testing, either.
"The problem the vendors are having is New York state has a higher standard than they're accustomed to," says Bo Lipari, executive director of New Yorkers for Verified Voting, a group that has pressed for rigorous vetting of electronic voting devices. New York is believed to be the only state to require that BMDs and scanners meet guidelines promulgated by the U.S. Election Assistance Commission in 2005. "What we're seeing is the vendors are not prepared to meet that standard." In fact, several vendors have pulled out of the competition in New York since 2006. One company that withdrew in July, Premier Election Solutions of Texas, cited the costs of complying with New York's testing regime as its reason for pulling out.
As time has passed, some voting integrity advocates have come to see New York's delay in approving voting machines as a virtue. Other states that already purchased new voting systems have experienced problems that New York, by waiting and enforcing higher standards, might avoid. But if the state risks missing next year's deadline, it's unclear whether Judge Sharpe will respect those higher standards. The state board says it's still on track to make the date, but Lipari isn't as sure. "It's hard to see how we could deploy those machines in 2009 given the testing we have to do," he says. "Will the judge step in and say, 'I don't care about machines failing tests. I want them to deploy'?"
Board vs. Board
Meanwhile, another HAVA mandate – the directive to centralize and computerize the state's list of registered voters – has caused a rift between the state board and the New York City Board of Elections.
In April, Robert McFeeley, a Staten Island Republican and member of the city's Voting Assistance Commission, filed a complaint with the state alleging that the city Board of Elections had failed to remove duplicate voters from the local rolls. McFeeley presented what he said was evidence of voters registered under the same name at addresses within and without New York City, of women voters listed under both married and maiden names at the same address, of people listed under given names and nicknames (e.g., "Robert" and "Bob") and of voters listed at addresses they no longer occupy, like those displaced from a public housing development that the city was redeveloping.
McFeeley says the number of alleged duplicate voters erects a higher-than-necessary barrier to getting on the ballot, since the number of petitions that candidates for some offices must collect is based on the size of the electorate. He also worries that the amount of "dead wood" on the rolls lowers estimates of voter turnout. What's more, McFeeley says, a large number of illegitimate registrations could allow a losing candidate to challenge future election results. He adds, however, that to his knowledge, "there has been no fraud."
The state didn't accept all McFeeley's claims, but did find in a July ruling that the city Board of Elections wasn't following state election law and that "the number of duplicate voters on the City of New York voter registration rolls is increasing rather than decreasing." The ruling instructed the city board to match its files to the statewide registration system, called NYSVoter.
In August, the city Board of Elections fired off its own complaint against the state Board of Elections, claiming that state law grants local boards discretion over removing duplicate voters. What's more, the city argues, state law requires that decisions on adding voters to or removing voters from the rolls be made in a bipartisan matter. The city claims that it has no assurance that NYSVoter is being maintained with bipartisan oversight. The city board's lawyer, Steven Richman, says his client is merely trying to protect voters. "The Board has not decided to disenfranchise voters in the City of New York based on a system that's relatively new, untested and we're not sure it's accurate," Richman testified at a state hearing in June.
According to the progress reports filed with Judge Sharpe, representatives of the city and state board met earlier this month to try to "reach a resolution to the impasse." According to Brehm, "It's safe to say we continue to have a dialogue."
As election officials struggle with voter registration and testing new machines, voters face a choice this fall of whether to stick with the lever machine or use the voting device of the future, the BMD. Non-disabled voters can use it, either in solidarity with the disabled or simply out of curiosity.
At a recent demonstration by the city Board of Elections in Queens, more than 300 people showed up to try the machine. Each user slips the ballot into the machine and makes selections by touching the screen. If a person fails to vote for a particular office, the machine issues a warning. When the voter has made selections down the whole ballot, the machine displays all the choices for review and allows the voter to make changes. After the voter approves the selections, the machine prints out a ballot – creating a permanent, paper record that a voter can check before submitting. The voter then drops the ballot in a box where it's held until the polls close.
Verified Voting director Lipari has decided not to use the BMD himself this time around. He doesn't want to hold things up. "I was struggling with it. It would probably take me 45 minutes to vote," he says of a recent test. Disabled voters' advocate McCoy isn't sure what she'll do. But she's optimistic that more disabled people will make it to the polls, rather than not voting at all or casting an absentee ballot – both of which, McCoy says, keeps disabled voters hidden and separated from the consummate civic experience. "The hope is that they will go out to polling sites and be visible," she says. "We're hoping that people with disabilities will be part of the communal experience."
Since HAVA's enactment six years ago, there has been occasional tension between voting integrity advocates and advocates for the disabled, whose interests overlap but do not totally align. The integrity movement insisted on eliminating any possibility of errors in new voting technology, even if that delayed the arrival of new machines. The voices for the disabled, while concerned about integrity, were more anxious to replace current technology that made it hard for many disabled people to vote. After all, with so many disabled people needing help from election workers on the lever machines, many had already surrendered their right to a private ballot.
With New York State now beginning the end of the lever devices, Lipari says, those tensions have largely abated. The BMDs that voters will see Election Day, he says, "are not temporary. This is the first year of the permanent solution."