A letter from Andi Novick

Dear Friends,

I have written to explain why I am proceeding to sue the NYS legislature for their abdication. My letter can be found at http://www.opednews.com/articles/opedne_andi_nov_080315_open_letter_to_ny_ci.htm

In the briefest terms I am bringing this lawsuit because when our government fails us as miserably as it has, our system provides that is the judiciary to whom we should turn to stop the legislature from behaving in derogation of its responsibility to protect our constitutional right to vote. Our electoral system has always required a transparent, observable highly safeguarded process to ensure the integrity of our vote. The safeguards, intended to prevent the opportunities for fraud and manipulation, that we have enjoyed for well over a century, will be rendered non existent if we permit our vote counting to be concealed within the unobservable processes of a computer. It doesn't matter what kind of computer, be it a DRE or Optical Scanner, software driven devices have been shown to be highly vulnerable to manipulation without detection.

We know all software driven systems can be manipulated regardless of the level of security provided, but it should be known that the voting systems on the market provide no security as compared to the standards that computers used in financial transactions are subject to. And even with the standards and oversight an institution such as Hannaford grocery stores provides, just this past week millions of us had our credit cards stopped because Hannaford's computers has been hacked. Software was installed on the servers at every one of its grocery stores in 6 states, notwithstanding the firewalls, virus checks and close scrutiny that Hannaford's computers, unlike our voting computers, were subjected to. Hannaford said any single person, a technician for the vendor or a hacker, could have done this. For more on the story see http://www.boston.com/news/local/articles/2008/03/28/advanced_tactic_targeted_grocer?mode=PF . By the way, Hannaford's computer security did not detect the breach. It was only discovered because fraudulent transactions were being conducted. In the election industry no such mechanisms are in place that would trigger an investigation. We'd never know. What a way to run a democratic electoral system.

The stakes are a lot higher when we're talking about controlling the US treasury, a far more desirable target than our four million or so credit cards that were gotten. And we're talking about nothing less that our sovereignty when voting computers are hacked. We in New York are the only state that has not yet computerized its electoral system. Please ask yourself again what you are willing to do to fight for your freedom before the theft-enabling machines are installed in New York? If you do nothing else write to your newspapers and local media outlets. Demand coverage and investigation. Write to your legislators and send them a copy of my letter linked above. Let them know they should be ashamed of themselves. Write to our new governor, see what he's willing to do. Email me and volunteer to resist and assist.

thanks

andi novick Northeast Citizens for Responsible Media (Re-Media)

"The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case." Thomas Paine
Create a Home Theater Like the Pros. Watch the video on AOL Home .

Check your calendars

Tuesday December 18 at noon: Please join Ulster County Legislator Susan Zimet (New Paltz), Hyde Park voting integrity activist Joanne Lukacher, and Joel Tyner in front of the Dutchess County Board of Elections offices at 47 Cannon Street in Poughkeepsie in public support of Rhinebeck attorney Andi Novick's recently submitted amicus brief to the U.S. Federal District Court in Albany re: United States v New York State Board of Elections (Case # 1:06-cv-263).

Wednesday, December 19 at 7 p.m. Join the discussion at the Muddy Cup. We'll be discussing Naomi Wolf's book (see the blog from 12/11 for one of her talks on her book, and some review articles)

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