Andi Novick is filing an Amicus Brief in the case of whether or not NYS will be compliant with HAVA ( explained in plain speak below). Dem Women have signed on to it I believe, as have various other organizations and officials (Yea, Susan Zimet!)


The Value of the Amicus Brief we will be filing in the United States v NYS BOE and NYS

The DOJ's position : NYS is in violation of HAVA. Lever machines are not HAVA compliant. NYS said they'd purchase computerized voting systems in 2006 and DOJ backed off, but because NYS hasn't yet bought computers the DOJ has made a motion which asks the Court to appoint a federal magistrate to decide how NY's elections should be run in 2008 unless NYS agrees to become HAVA compliant by buying DREs or Optical Scanners now.

Presumed position NYS will take: NYS will become HAVA compliant in terms of accessibility requirements by putting a machine in every polling place that permits disabled voters to vote independently. (NYS is considering uncertified DREs to function as a Ballot Marking Device (BMD) as well as considering BMDs.) NYS will not be HAVA compliant by 2008, but will purchase computers for 2009 and would like permission to be able to continue to use the lever machines for 2008.

If NY takes this position, that it will remain in violation of HAVA for 2008, that leaves it within the Court's discretion to decide whether to allow NY to stay on the levers for 2008 or appoint a federal magistrate to decide what to do about NY. The federal magistrate could decide to purchase DREs for all of NYS or purchase optical scanners for NYS or both.

Amici's position: NYS must put BMDs in every polling place (not DREs). NYS can then become HAVA compliant for 2008 in one of two ways. If we are HAVA compliant than it is no longer within the Judge's discretion to decide whether to appoint a federal magistrate or not. The DOJ's motion would have to be dismissed if NYS is no longer in violation of HAVA.

1) Amici will argue that lever machines are HAVA compliant. This is a legal argument which the Court has not ruled on. Well meaning advocates have argued that levers cannot be HAVA compliant, but that is just their interpretation. I will make the amicus brief available when it's completed to share the basis for my legal position, but should the Court agree with this analysis, then we could stay on our levers for still another election and the DOJ motion would have to be dismissed. I don't believe anyone else is arguing that levers are HAVA compliant. On a personal note I am not an advocate of levers (although I do prefer them to computerized voting systems) however I will argue they are HAVA compliant as a matter of law because if the Court accepts this legal analysis then the DOJ's motion and request for a magistrate to take over our elections would have to be denied.

2) If the Court were to rule that levers are not HAVA compliant, I have also argued that NYS can still be HAVA compliant for 2008 by hand counting the two federal races. This is not a legal argument the Court can reject because it's not subject to interpretation. Hand counting paper ballots is permitted under HAVA so long as a means for disabled voters to vote independently is also provided. Thus as a matter of law, the DOJ motion would have to be dismissed because it asks for the appointment of a magistrate only if we remain in violation of HAVA.

Both these positions of Amici are legal positions which protect NYS by not leaving us vulnerable to the threat of take over. If NYS is only asking for permission to be allowed to stay on levers, conceding they're not legal under HAVA, then the Court can choose to ignore this request and appoint a federal magistrate who could decide to buy any of the corrupt computerized voting machines being sold on the market today.

The evidence Amici will put before the Court: The Amicus brief will provide the dozens of independent reports by computer scientists which have found that all computerized voting systems- both DREs and Optical Scanners- are vulnerable to being hacked and changing the outcome of an election. These reports show that hacks have been readily performed on both DREs and Optical Scanners and that these hacks can be accomplished without detection.

The Amicus brief will also argue that the constitution requires that the right to vote includes the right to see that one's vote was received and accurately counted and that computerizes voting makes that which must be transparent, concealed. All DREs and Optical Scanners, sold by the same handful of vendors, count the votes using secret software. The people are never permitted to know or see how the DRE or the Optical scanner was programmed to count their votes. Secret vote counting, IMHO is not only unconstitutional, but is un-American.

Amici will also present the evidence of the thousands of breakdowns and failures of these computerized voting systems over the past five years. Amici will also argue that the vendors selling these systems are not eligible to do business in NY because they irresponsible, unethical and guilty of multiple offenses that violate NY's laws thereby precluding NY from contracting with them. See two memos I have written on this topic and the evidence contained therein. http://www.wheresthepaper.org/Memo1NYSvendorsProhibited.pdf , http://www.wheresthepaper.org/UpdatedProcurementVendorIrresponsibility070822.pdf ,)

None of this evidence is currently before the Court on this motion. The DOJ has demanded NYS purchase DREs or Optical Scanners that have been shown to be faulty, vulnerable to hacking and unable to produce accurate election results, without revealing to the Court the evidence and documentation Amici will provide.

To clarify, because there's been some confusion created about the legal position of this Amicus brief, if you are opposed to DREs and support Optical Scanners, that position is not inconsistent with Amici's brief. The issue before the Court is what is to happen in 2008. I believe that all activists and the county election commissioners and NYS BOE agree that it would create chaos to install optical scanners or DREs for the first time in a presidential election. The only ones who think it's a good idea to install DREs or Optical Scanners for 2008 is the DOJ and maybe the federal magistrate who the Judge could appoint if NYS remains in violation of HAVA. This is why it is so important to take a legal position that makes us HAVA compliant so that it's not up to the Judge's discretion to decide whether to appoint a federal magistrate to decide for us.


andi

Andrea T. Novick, Esq. Finder Novick Kerrigan LLP 315 Park Avenue South New York, New York 10010 Rhinebeck office 349 Ackert Hook Rd. Rhinebeck, New York 12572 (telephone) 845 876 2359