Author: Bo Lipari
In the first test case of how we verify election results using New York’s new paper ballots, the State Judiciary is in the process of setting an egregious precedent – Judges are free to nullify audits and recounts in the interests of having a quick decision. In Nassau County’s contested 7th Senate District (SD7) race, two State Courts that have heard the case to date have made very bad decisions. Ruling that even if New York’s audit laws require a further hand count of paper ballots, accepting the machine results and declaring a winner outweigh the public’s right to know who really won the election. [ See news reports here and here.]
The Johnson and Martins dispute demonstrates the typical dynamic in close political contests when paper ballots are available to inspect – regardless of party affiliation, the candidate in the lead wants to stop further ballot counting, the candidate behind wants to continue. And the Courts almost always become involved in one way or another. In the SD7 case, Johnson asks the Court to order a full manual recount, since several machines failed the initial 3% audit. Martin’s legal team on the other hand argues that “At the end of the day we must balance accuracy with finality”. The meaning here is hardly disguised – stop counting ballots, we’re more interested in winning than getting an accurate result.
The initial Supreme Court decision had to make a real stretch to rule that several of the audited scanners had in fact passed the audit even though the number of ballots the scanner reported did not match the number of hand counted ballots audited. I mean really – when 3 out of 7 machines do not report the same number of ballots as the manual audit, they’ve failed. This is common sense, something apparently in short supply in New York courtrooms.
The big benefit of the State’s new systems isn’t the machines, it’s the paper ballots. So far, the Courts are failing to understand that. Perhaps this comes from a flawed mindset resulting from nearly a century of using lever machines – it’s okay to trust the machine. Lever machines and paperless DREs leave you with no way to verify the vote, so what choice do you have anyway? But this outdated mindset is not okay, and really never was. Today we can do better. Today we can count the paper.
New York State now has achieved one of the necessary conditions for verifiable election outcomes – paper ballots. Of course political parties will contest outcomes in court. Nowadays that’s just the way we do close elections in the United States. When SD7 went to New York’s Supreme Court, I had hope that New York’s judiciary would understand the value of counting the paper, and there’s still a slight chance that they might (the final Appellate Court may rule by the end of the week). But it’s becoming clear that hope will remain unrealized. If upheld, these rulings are very bad precedent for New York’s elections.
This demonstrates something I’ve been saying for a long time – getting new systems and paper ballots was only the first step towards verifiable elections. Now that we have the paper ballots, we’ve got to work on using them correctly. And that means knowing when we need to count them. In New York State, that means we citizens will have to push for changes to New York’s election law that allow recounts when warranted, making them more specific and subsequently less subject to judicial fiat. Here’s three changes we New Yorkers could make to the law that would get us a lot closer to where we need to be:
1) Adopt risk based auditing methods, replacing the current escalating flat percentage.
2) State law currently requires agreement of both election commissioners to escalate an audit. But this will never happen, because in New York one commissioner is appointed by Democrats and the other by Republicans. And these appointees are expected to represent their parties position in election disputes, particularly in an important race like SD7. So we must change New York law to allow either commissioner to escalate the audit.
(3) Adopt new standards that require a hand count in close elections.
If we can make changes like this, we will be a lot closer to realizing the full potential of our paper ballots than we are today. The new Legislative session starts in January, and as you can see there’s much work to be done. Ready to get started?