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The Following Testimony is an Excerpt of July 10, 2003
Coalition Testimony on Voting Systems/Voting Machines before the NYS
HAVA Implementation Task Force.
The
Full Testimony is Available Here
A More Recent Coalition
Statement in Support of Voter Verified Audit Trails and Data-to-Voice
Technology is Available Here
The New York State Citizens’ Coalition on HAVA Implementation
is an ad hoc and diverse coalition of Good Government, Voting Rights,
Racial Justice, Disability Rights, and Language Rights organizations
and academics who are concerned about the way in which New York implements
the Help America Vote Act (HAVA.) We are committed to protecting voting
rights and improving the electoral process in New York. The Coalition
includes the Asian American Legal Defense & Education Fund (AALDEF),
the Brennan Center for Justice at NYU School of Law, Citizens Union,
Common Cause/NY, DEMOS, Disabilities Network of New York City, Eastern
Paralyzed Veterans Association, New York Immigration Coalition, New
York Lawyers for the Public Interest, the New York Public Interest Research
Group, (NYPIRG), People for the American Way/NY, the Professional Staff
Congress and several other organizations. The testimony we provide today
on the Draft State Implementation Plan represents the collaborative
efforts and opinions of this Coalition. Certain member organizations
have not yet had the opportunity to approve formally this testimony,
and we will apprise the Chairman if there are any changes or objections
from the boards of these organizations.
…Excerpt on
Voting Machines
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Voting System Standards
o Replacing
Lever Voting Machines
HAVA requires that all voting systems meet certain requirements by the
first election after January 1, 2006, including that all lever machines
are replaced by that time if a state chooses to receive federal funds
under Section 102 of HAVA for this purpose. These requirements provide
New York and other states an opportunity to improve both the accessibility
and the accuracy of our elections through new technologies and improved
administration. The Draft Plan, however, fails to provide any details
to indicate that New York State will take full advantage of this opportunity.
With respect to the responsibility to replace the voting machines, the
Draft Plan merely reflects the status quo and thus fails to propose
improvements to New York’s system of machine purchases and maintenance.
In relevant part, it states that “Each county board of elections
is responsible for implementing the replacement voting system in their
county, however, the State Board is leading the statewide effort for
replacement and is therefore ultimately responsible for meeting this
performance measure.” DP at 10. Current state law allows and encourages
towns, villages, and a small number of counties to select and purchase
their own machines, albeit from among those certified by the State Board.
The status quo thus does not facilitate the selection or purchase of
a single, uniform voting system for the whole state.
The SIP should not only include the Task Force’s proposed changes
to existing state laws to allow for county ownership of the voting machines,
but also should articulate a more proactive, central role for the State
Board to ensure uniformity across the state. Specifically, the State
Board has the authority under existing law to certify a single voting
machine for use across the state to replace lever voting machines. The
SIP should call for all polling places to offer the same uniform, integrated
voting systems to all voters. This will ensure uniformity of the voting
experience and the same quality of service to all voters. Such a role
for the State Board would better facilitate collective purchasing of
the machines in larger quantities to achieve a better per unit cost
from the vendor in question. It would also minimize long-term repair
and upkeep costs, allow poll workers and maintenance workers to be trained
on the same machinery and software, uniform public education through
common media outlets, and an interchange of equipment and personnel
across county lines.
o Certification Process
The selection process for new voting machines in New York State must
be free of partisan lobbying and favoritism and instead should focus
squarely on the quality, features, and cost of the machines and software
under consideration. The Assembly has introduced and passed legislation
that would appoint an independent advisory panel to review and recommend
appropriate voting machine specifications for New York State. See A.8847.
In addition, under the Assembly legislation, the State Board would select
a single voting machine through a competitive bidding process that includes
meaningful opportunities for public comment. The Task Force should adopt
these proposals even in the absence of signed legislation and include
detailed language to that effect in the final SIP. In addition, the
final SIP should establish that any voting machine contracting process
should be transparent and open to the general public through public
forums and hearings.
o Full Face Ballot Requirement
New York State’s “full face ballot” requirement, if
left on the books, threatens to prevent New York from taking advantage
of the tremendous new voting machine technologies that the plurality
of other states are already purchasing. Because the finest new DRE machines
feature scrolling screens that show the voter each race separately and
consecutively, these machines do not comply with New York’s requirement
that all information on the ballot be printed within a single ballot
frame. See N.Y. Elec. L. § 7-104.1; N.Y.C.C.R.R. tit. 9, §
6209.2(a)(3). Unless the law and State Board regulations are changed,
New Yorkers will have to vote on machines that are neither as user-friendly
nor as accessible as those in other states. Virtually all observers
and elected representatives from across the political spectrum agree
that this requirement should be repealed, including Governor Pataki.
The Task Force should make clear its support for such repeal in the
final SIP. Anything less than such a statement of support will render
the Task Force and the SIP virtually irrelevant to any real and lasting
improvement of elections in New York State.
o Accessibility for Voters with Disabilities
The Draft Plan includes a brief discussion of the State Board’s
intentions to enhance accessibility of voting systems for voters with
disabilities, but lacks the specifics necessary to ensure meaningful
reforms. Specifically, the Draft Plan states that “the state will
engage in statewide efforts to ensure accessibility to voting systems
and all procedures directly connected to the election process.”
DP at 6. In addition, the Plan indicates that three steps that it will
take to improve accessibility, namely (1) replacing the lever voting
machines with “accessible” voting machines or rendering
existing machines more accessible with “accessible devices”
by the 2004 federal election, (2) “encourag[ing] public-private
partnerships to enhance the voting participation of all voters with
disabilities,” and (3) requiring county officials to report on
the outcomes of city and town inspections of polling places to determine
compliance with state and federal laws and regulations on physical accessibility.
DP at 11. While laudable, these steps are both overly vague and inadequate
to ensure truly enhanced accessibility. Perhaps most important is the
Draft Plan’s failure to address the most pressing barrier to the
purchase of truly accessible voting machines: New York State’s
anachronistic “full face ballot” requirement.
The final SIP should better address six critical areas that must be
addressed if New York State is serious about improving accessibility
to voters with disabilities. First, the SIP should expressly advocate
for the legislative repeal of the “full face ballot” requirement
found in N.Y. Elec. L. § 7-104.1. Without such repeal, the range
of voting machine technology that New York State can consider will be
severely limited. In particular, the DRE machines that allow voters
to scroll consecutively through the offices for which a vote is required
rather than face at least nine columns and rows at once greatly expands
access to voting machines for people with disabilities, particularly
those voters with cognitive disabilities. The accessible voting technology
survey conducted in January 2003 by the Office of the Manhattan Borough
President C. Virginia Fields, the Center for the Independence of the
Disabled in New York, and Independent Living Center in Manhattan showed
clearly that even the new full face ballot machines remain inaccessible
to voters with certain types of disabilities. The Task Force should
take this opportunity to express its support for repeal of this antiquated
requirement.
Second, the final SIP should state in much greater detail the types
of “accessible devices” and other alterations to existing
voting systems the State Board will require to improve accessibility.
Legislation passed by the Assembly specifically requires that at least
one voting machine in every polling place include human voice audio
voting, a handheld voting device, and sip and puff voting technology.
See A.8847. The SIP should identify these and other specific adaptive
technology and interfaces that the State Board will mandate for New
York State’s machines.
Third, the Draft Plan is entirely silent concerning the role, if any,
that representatives of the disability community and voters with disabilities
will play in selecting, reviewing, testing, and commenting on the voting
machine technologies available in New York State prior to their final
implementation. Currently, the Draft Plan makes only vague references
to federal and state laws and regulations regarding disability access,
and articulates no role for advocates or voters with disabilities in
the process. Such a regressive approach is doomed to failure in any
meaningful quest for truly accessible voting machines. As the Assembly
legislation does, the final SIP should provide for specific procedures
to obtain ongoing feedback from disability advocacy groups, such as
the New York State Independent Living Center (“NYSILC”),
and voters with disabilities on the different technologies being considered
for certification or purchase. New machine rollout should also include
extensive consumer use surveys executed throughout the rollout process
so that New York can adjust the voting system elements as conditions
in the field and needs of voters develop. In addition, the SIP should
expressly state that New York will adhere to the ADA standards adopted
in the Assembly legislation (A.5473-A), as well as all other applicable
federal and state standards.
Fourth, the final SIP should indicate that the State Board will apply
the broader definition of “disability” included in the New
York State Human Rights Law to determine who is covered by the disability
rights mandates of HAVA (1). The Task Force should
not simply take the low road when it comes to disability access; it
should take this opportunity to ensure that all voters with disabilities
have access to a voting machine in their district.
Fifth, to ensure polling place accessibility it is not enough for the
State Board to require counties to pass on information on inspections
gathered by cities and towns. Self-reporting of this kind is notoriously
ineffectual. Such a passive role for the State Board will lead only
to noncompliance and incomplete reporting by localities and counties.
Under New York election laws, the State Board has broad powers and the
duty to enforce the election laws and expeditiously investigate any
violations of the laws, including by appointment of special investigators,
issuance of subpoenas, inspections, judicial proceedings, and other
mechanisms. See N. Y. Elec. L. §§ 3-102, 3-104, 3-107. The
final SIP should expressly state that the State Board will implement
an enforcement program specifically to monitor and enforce polling place
accessibility requirements throughout the state. The SIP should include
specifics as to the personnel and other resources that the Board will
devote to this program. Specific amounts of HAVA monies should be earmarked
for targeted inspection of polling sites for accessibility, directly
or through contracts with independent living centers and Protection
and Advocacy organizations throughout the state. In addition to monitoring
county reports on accessible and inaccessible polling sites to make
inaccessible polling sites accessible, funding should also be earmarked
for identifying alternate, accessible or adaptable polling sites within
the immediate area of any inaccessible sites that cannot be readily
rendered accessible. The SIP should also indicate that the State Board
will produce a comprehensive guide to polling place accessibility for
state residents prior to every election to ensure that voters with disabilities
have full access to voting in their communities.
Finally, the final SIP should provide details as to how the State Board
will identify both public and private resources and the specific ways
in which each of those resources will be used in order to “enhance
the voting participation of all voters with disabilities.” These
should include NYSILC, all independent living centers across the state,
vocational rehabilitation agencies, the State Advocates office, Protection
and Advocacy organizations, all officials elected to county, local and
statewide elected office. Part of the effort should include paid and
public service announcements in various languages, distributed through
all newspapers used for any official state notices and significant non-English
language papers, and all of the larger radio and television broadcast
media in the state, as well as on the Board’s website. Clear and
explicit written and recorded information on the voting systems should
be widely distributed to voters and organizations that represent voters
with special needs and voters whose primary language is other than English.
Publicity should include information about the voters’ Bill of
Rights, the right to accessible polling places, the use of any new voting
systems including all of its adaptive equipment, updated information
about newly accessible polling sites, the procedure for obtaining absentee
ballots, and the means of filing complaints about any violation of voters’
rights.
o Accessibility for Voters with Limited English Language Proficiency
Section 301 of HAVA requires that New York State’s voting systems
be accessible to language minorities and specifically incorporates the
Language Assistance Provisions of the Voting Rights Act (i.e., Section
203). 42 U.S.C. § 15481(a)(4). Under Section 203, certain counties
must provide translated ballots, voter registration forms, voting instructions,
and all other voting materials and provide interpreters to assist limited-English
proficient voters. After Census 2000, language assistance is required
under the Voting Rights Act, and now also HAVA, in the following languages
and New York counties: Queens: Korean, Chinese, Spanish; Kings, New
York: Chinese, Spanish; Bronx, Nassau, Suffolk, Westchester: Spanish.
Given the opportunity presented by new voting machine technology, translating
the ballot into numerous languages will require little added expense
or difficulty. The final SIP should therefore do a lot more than the
minimum required under the Voting Rights Act. Multiple language options
should be made available on a statewide basis. The Draft Plan, however,
simply refers generally to complying with the Voting Rights Act and
indicates that the State Board’s role is simply to provide “assistance
and cooperation” with the county boards.
In fact, the State Board must and can do much more to provide alternative
language accessibility to New York State’s many citizens with
limited English proficiency and the final SIP must reflect that responsibility.
First and foremost, the SIP must articulate the State Board’s
plan to address the numerous existing deficiencies in the state’s
current provision of language assistance under Section 203. Specifically,
the SIP should outline a program for the State Board to address the
many instances of mistranslated ballots and failures to provide voters
with translated materials or interpretation in the required languages
at polling places.
Second, the final SIP should identify ways to expand language assistance
beyond the minimum requirements of the Voting Rights Act and develop
a specific methodology to determine which languages and counties to
include. At a minimum, voter registration forms, instructions in how
to vote/operate voting machines, nonpartisan election guides, and ballots
should be translated into Bengali, Urdu, Russian, and Haitian/Creole
in New York City. Also, the state should provide assistance for Spanish-speaking
voters in certain counties in Upstate New York not currently receiving
such assistance. The SIP should also mandate that anything written,
presented auditorily or displayed in English also be displayed, at least,
in Spanish, Chinese, and Korean for voters with both disabilities and
limited English language proficiency.
Third, the final SIP should indicate a firm commitment to certify and
purchase only those voting machines that will be equipped to comply
with expanded federal language requirements in the future.
o Voter-Verifiable Audit Trail
It is unfortunate that the Draft Plan does not discuss the issue of
audit trails produced by the new voting machine technologies. Some have
called for a physical record of each vote to diminish security concerns
over electronic election counts and help to ensure the integrity of
elections by allowing officials to double-check results if discrepancies
or other concerns arise. Other advocates have expressed serious concerns
that any requirement of a voter-verifiable audit trail would inevitably
raise the cost of machines, and thus reduce the resources available
to ensure fully accessible voting systems; set up a dual system where
voters with limited vision would not enjoy the same level of privacy
as other voters; and perhaps lead to printer malfunctions and longer
lines on Election Day. The citizens of New York are ill-served by a
planning document that fails to address any of these complex and thorny
issues.
o Versatility of Machines
The final SIP should state expressly that the State Board will ensure
that any new voting systems certified or purchased in New York State
must be sufficiently versatile to be used in elections that feature
instant run-off voting or cumulative voting.
o Security
The need to address
the integrity of the vote is a vital one. State and independent experts
should fully review the hardware, source-code and software of any voting
system to test its security and to assure the public of the system's
integrity. Additionally, we have serious concerns about the potential
privatization of the conduct of elections. The final SIP should indicate
the Task Force’s recommendation that new voting technologies where
both the ballot preparation and counting of election results remain
in public hands should be favorably considered by the State Board and
local jurisdictions. A wide number of security concerns and different
approaches to security are being debated across the country. It is unfortunate
that the Draft Plan addresses none of these issues.
End of Excerpt
The
Full Testimony is Available Here
A More Recent Coalition
Statement in Support of Voter Verified Audit Trails and Data-to-Voice
Technology is Available Here
(1) "Disability" under the New York State
Human Rights Law means:
(a) a physical mental or medical impairment resulting from anatomical,
physiological or neurological conditions which prevents the exercise
of a normal bodily function or is demonstrable by medically accepted
clinical or laboratory diagnostic techniques or (b) a record of such
impairment or (c) a condition regarded by others as such an impairment
. . . .
N.Y. Exec. Law § 292(21). This definition is broader than that
contained in the Americans with Disabilities Act (ADA) in that it does
not require that a limitation be "substantial" or that it
be a limitation to a "major life activity."
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