New paper ballot optical-scan computer tabulator systems used to tally millions of votes in New York --- as well as "swing states" such as Florida, Ohio and Wisconsin --- do not tally votes correctly. That stunning admission comes courtesy of a new report released by the private company which manufactures, sells, services and programs the systems which are now believed to have mistallied tens of thousands of ballots in New York in 2010.

The votes of more than ten million voters could be affected by a newly revealed failure in the voting systems set for use in those four states in this year's Presidential election, and in more than 50 different jurisdictions in Wisconsin during next month's historic recall elections.

Election Systems & Software, Inc. (ES&S), the largest e-voting machine company in the U.S. and the maker of the paper ballot op-scan tally systems in question, have confirmed that their systems may overheat when used over several hours (for example, during an election!), and that they then may mistally and/or incorrectly discard anywhere from 30% to 70% of votes scanned by the machines.

The only way to know that a hand-marked paper ballot had been mistallied by the system would be to examine the ballots by hand to assure that the computer had read and recorded the voters' selections correctly.

The New York Daily News editorial board --- which has been persistently forcing the issue on state Election Officials who initially ignored massive mistallies discovered in the South Bronx during the state's 2010 election --- reports on ES&S' confirmation of the latest failure in a story headlined "We told you so: Newfangled voting machine screwed up". Their article today begins this way...

Earlier this year, the newspaper discovered --- through public records requests for the paper ballots in a single precinct in the South Bronx --- that the ES&S model DS200 op-scan system had failed to count some 70% of paper ballots correctly in the 2010 primary election. In that November's general election, some 54% of the ballots were mistallied at the same precinct.

The result, as confirmed by ES&S, tens of thousands of perfectly valid votes may have gone uncounted, while thousands of "phantom votes" in races that voters hadn't intended to vote in at all were counted as valid votes.

The Daily News characterizes the initial response by election officials in NY, after the paper had discovered the massive failures, as "a statement of severe psychological denial."

All of the above likely sounds very familiar to long-time readers of The BRAD BLOG, where we are considering changing the name of our news site to "We Told You So: Newfangled Voting Machines Screw Up," as a tip of the hat to the NY Daily News, and to better reflect a great deal of our nearly 10 years worth of content here.

Unfortunately, the latest example of secret vote-tallying computers made by private companies failing to accurate tally our once-public elections, is not only affecting New York. Moreover, the failure isn't isolated to the ES&S model DS200 paper ballot optical-scan system. As we've reported here for years, and on a number of recent occasions over just the past few months, similar failures have been discovered in other states and on other similarly designed paper ballot optical-scan systems.

If you think that simply because you are not forced to vote on a 100% unverifiable touch-screen voting machine that your ballot will be counted and counted accurately this year, think again...

Guest editorial by Ernest A. Canning

Last September's hearings before the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights established that polling place photo ID restriction laws have nothing to do with eliminating "voter fraud."

They are, instead, part of what Judith Browne Dianis, a civil rights litigator at The Advancement Project, described at the time as the "largest legislative effort to roll back voting rights since the post-Reconstruction era" --- part of the partisan, multi-state effort by the billionaire Koch brothers-funded, Paul Weyrich co-founded American Legislative Exchange Council (ALEC)-fueled GOP exercise in voter suppression. Her testimony established, yet again, that such laws have a disparate impact upon minorities, the poor, the elderly and students (all of whom happen to have the unfortunate tendency of voting Democratic).

Despite the national nature of this coordinated, well-documented and well-funded assault on minority voting rights, so far the U.S. Department of Justice (DoJ) has confined its legal response to such newly-enacted laws to only the small number of "covered" jurisdictions, for example, South Carolina, that are subject to Section 5 of the Voting Rights Act (VRA). That section of the law requires federal preclearance for new election-related laws in those "covered" jurisdictions, since they each have demonstrated a long history of racial discrimination.

The narrow action taken by the DoJ to date, as based only on Section 5 of the VRA, could all change if they took the time to study the content of the new complaint, Jones v. Deininger [PDF], as filed last week in the U.S. District Court for the Eastern District of Wisconsin. The complaint alleges that Wisconsin's new polling place photo ID law ("Act 23") "is a voter suppression law that burdens African-American and Latino voters most heavily [which]...results in them having 'less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,' and, thereby, constitutes a denial and abridgment of their right to vote in violation of Section 2 of the Voting Rights Act."

The complaint in Jones, which was signed by attorney Charles T. Curtis, Jr. of Arnold & Porter, LLP, seeks to enjoin the implementation of Wisconsin's Act 23 and a declaration that it violates Section 2 of the VRA. When asked whether he contemplates seeking a preliminary injunction on the new law prior to the next election, Curtis was only able to tell The BRAD BLOG at this time that they "want to move the case as quickly as the Court will allow, and plan to request a pretrial conference to discuss motion and briefing schedules."

The additional question remains, however, will the U.S. DoJ defend federal law by opting to join this lawsuit as a plaintiff?...

Convicted federal criminal James O'Keefe and his band of co-conspirators at his ironically named Project Veritas outfit have another new video in their "Voter Fraud Investigation" series out. So that means, naturally, they're misleading the public again.

This time, O'Keefe's video portends to show some of his courageous, unnamed and unseen cohorts at various voter registration centers in Minnesota, asking whether they can have voter registration forms to take home to "Thomas Brady" and "Timothy Tebow", so they can register them to vote. The unseen voices are heard asking the helpful public clerks whether ID is necessary for those folks to register to vote. They are told that ID is not necessary in order for them to submit registration forms.

You'll recall that with O'Keefe's previous video --- in which they committed polling place voter fraud during the New Hampshire primary in order to "prove" that polling place voter fraud exists in the Granite State, despite no more than, at best, two known incidents of it over the past decade in the entire state --- he claimed: "Unlike the establishment media, Project Veritas works to release full, unedited versions of its investigations and stories," before he then linked to a video purporting to be the "full, unedited version" of his New Hampshire "investigation" videos. What he linked to, however, wasn't the "full, unedited version" of those videos, as they failed to show, among other things, the (at least) one incident in which one of his partners was chased out of the polling place. In other words, O'Keefe lied. That's what he does.

So I don't know if he has released an "unedited" version this time or not. I'm currently on the road and don't have enough time for his idiocy as is, so I haven't checked to see if there's another version of this. But let's go ahead and presume, for the moment, that the following edited version accurately-ish represents what happened when he sent his people into Minnesota voter registration offices...

Okay. Now let's dismantle O'Keefe's latest horse shit...

Problems with New York's new electronic voting system are being reported across the state today, according to the New York Times. Today's primary elections mark the first statewide use of the new, paper-based optical-scan systems which have been been the cause of much controversy among election officials and Election Integrity advocates over the last several months and years in the Empire State.

New York is the last state in the union to replace their older election system --- much of the state, as well as all of New York City had previously used mechanical lever machines --- with new-fangled, failure-prone, easily-manipulated computerized systems following the federal Help America Vote Act (HAVA) of 2002 which was enacted in the wake of the 2000 Presidential Election debacle.

In New York City, where Wall Street Journal reports the problems are "most severe" --- including reports from Mayor Bloomberg on "reports of broken and missing scanners, poor customer service and poll sites opening two to four hours late" --- the new systems are made by ES&S, the nation's largest voting machine company, and one with a storied history of election failures.

The systems used in other parts of the state are largely manufactured by the Canadian firm Dominion Voting, formerly as a partnership with Sequoia Voting Systems. Dominion eventually bought out cash-strapped Sequoia's portion of the NY state deal before buying out Sequoia entirely earlier this year. The purchase of Sequoia, then the nation's third-largest e-voting firm, on the heels of their purchase of Diebold/Premiere just weeks prior, has vaulted Dominion, virtually overnight, to one of the largest e-voting vendors in the U.S..

[Read The BRAD BLOG's recent exclusive on the Dominion purchase of Sequoia, and their attempts to cover up the continuing relationship that Sequoia has with a Venezuelan firm tied to President Hugo Chavez.]

Some state election officials and Election Integrity advocates alike had long-warned against the implementation of these new systems, going so far as to take the issue to court and to testify to the inability of certifying the accuracy of elections run on the new machines.

According to the Times this morning, some polling places "did not open for more than 90 minutes" in Brooklyn; elsewhere, every ballot scanned "was returning a the 'system error'" message; and across the state, there have been reports of "longer-than-usual delays and troubles with the scanners that are supposed to swallow and tabulate the new, SAT-style ballots"...

[Ed Note: L.A. County Registrar-Recorder/County Clerk Dean Logan was my guest on Wednesday night to discuss this report and its associated issues, as I am guest hosting the Mike Malloy Show again this week. The audio archive of that interview is now posted here. - BF]

-- Brad Friedman, The BRAD BLOG

The Los Angeles County Registrar-Recorder/County Clerk's office has issued a 5-page report on the complete failure I experienced while attempting to cast a ballot on the county's electronic voting system during this year's June 8th statewide primary.

The failures that I encountered last month --- as I detailed that night --- mirrored, almost exactly, those that occurred when I attempted to use the very same system, at the very same polling place, during the statewide primary in June of 2008 when the ES&S InkaVote Plus e-voting system that time had misprinted 4 out of 12 of my votes.

This time, it didn't misprint my ballot because I caught the problem --- on two separate machines --- before getting to the point where the system would have printed out my ballot. And this time, just as they concluded after a detailed investigation last time, L.A. County Registrar Dean Logan's office is chalking it up to, essentially, 'human error', in addition to limitations and inadequacies of the e-voting system itself...

-- Brad Friedman, The BRAD BLOG

What's going on in Monroe County, Arkansas?

We've been looking at their May 18 "Super-ish Tuesday" election night numbers on the AR Secretary of State's website (Monroe County doesn't have its own public election results website) since the night of the election, and the posted results can only be described as going from "impossible" on the day after the election, to possible but still entirely inexplicable.

At least six different election officials at both the county and state levels remain unable to tell The BRAD BLOG how any of it could have happened, even though thousands of votes appear to have simply disappeared in the final certified results, and the state is set to hold its primary run-off election next Tuesday...

Incredible. This would be the equivalent of appointing the sitting Vice President of Exxon Mobil to an EPA advisory committee, but Ed Smith has now been appointed to the disastrous U.S. Election Assistance Commission's (EAC's) Technical Guidelines Development Committee as one of their new "Technical and Scientific Experts."

From the EAC's email announcement on Friday (posted in full at end of article):

So Smith went from voting machine company Hart Intercivic to voting machine company Sequoia Voting Systems and is now at voting machine company Dominion Voting Systems, where he is a VP, selling e-voting systems to jurisdictions around the country that receive federal money doled out by the EAC. And now he'll also sit on an advisory board at the EAC helping to advise which one of those companies sees their systems certified for use in U.S. elections by the EAC. Just amazing.

But that's not even half the story of why this is just incredible, and another huge black eye for the EAC. (How many eyes do they have left to blacken at this point?) If you're not a long time reader of The BRAD BLOG reader, and don't recall who this Ed Smith is, read on. It's simply stultifying...

On Thursday, Nathan Barker of upstate New York's Gouverneur Times --- a far-Right online publication (featuring columns by the likes of Michelle Malkin, Oliver North, Chuck Norris, and all the rest of the wingnutters) --- filed a lengthy, and somewhat breathless, report alleging a computer virus had infected several of the new e-voting systems in first-time use during the November 7th Special Election in NY's 23rd Congressional district between Democratic candidate Bill Owens, Conservative Party candidate Doug Hoffman, and Republican Dede Scozzafava (who dropped out of the race just prior to Election Day and threw her support to the Democrat).

Barker charged that a "VIRUS in the VOTING MACHINES" [his caps] resulted in "tainted results," "casting doubt on the accuracy of counts retrieved from any of the machines" used in the election.

Owens was reported to have won the election by a small margin on Election Night --- made smaller as errors were discovered during the post-election canvass --- before being hastily sworn in to the U.S. House just a few days later, in time to provide a crucial Democratic vote in favor of the health care insurance reform bill.

Barker's detailed report clearly offers a hard-right undertone, obviously in support of the Conservative Party candidate Hoffman. The article also advances several unsubstantiated conspiracy theories and features a number of out-and-out inaccuracies as well. A number of the piece's key allegations, though important, are also disputed by election officials, and at least one lead member of New York's election integrity community --- which is, itself, split between supporters of the new optical-scan e-voting systems and those calling for the retention of the Empire State's long-used mechanical lever voting machines.

Nonetheless, Barker raises a number of significant points and important concerns, about which The BRAD BLOG has been warning for years, often in the face of derision, notably from the same Rightwing circles crying foul now, who had previously dismissed such concerns as those of 'tin-foil hat wearing, sore losers and conspiracy theorists' despite actual hard evidence and scientifically-sound details proffered about such concerns.

It's somewhat amusing to see some on the Right, now that they have concerns about a close election, suddenly find religion on the very issues they'd derided as nonsense so stridently in the past. It's very tempting to either disregard them now entirely, or torture them mercilessly on that point. But we'll try to take the high road here since their central concerns, now that they've finally arrived and no matter how long overdue, have been ones that we've shared for years, whether or not they might have stood to adversely affect Democrats, Republicans or independents.

The bottom line is that whether a computer virus, malicious or otherwise, affected the results of the NY-23 Special Election or not --- we've seen no actual evidence that it did, and state officials offer a differing explanation for the e-voting system failures that did occur --- it certainly could have. The direct threat to democracy inherent in the concerns expressed by Barker (whether substantiated or not), underscore the foolishness of using such secret vote-counting systems at all. In New York --- where voters, in real elections, are essentially being forced to serve as beta testers of these new, federally-uncertified systems, made by a company with a long track-record of failure, lies, obfuscation, near-bankruptcy, secretive foreign ownership, election disaster after disaster, and dissembling to the media, as well as federal, state and local officials --- the foolishness is all the more apparent, unnecessary, unfortunate and a clear and present threat to democracy itself...

A group of computer scientists and security experts from California's 2007 landmark "Top-to-Bottom Review" (TTBR) of electronic voting systems have sent a two-page letter [PDF] of condemnation to the U.S. Election Assistance Commission (EAC), taking the federal body to task for their approval of misused security findings from the TTBR in recent certification testing for a new e-voting system made by Diebold/Premier.

The voting system, Premier's Assure 1.2 --- made by Premier Election Solutions, Inc. (formerly named Diebold Election System, Inc. and recently purchased by Election System and Software, Inc.) --- was granted federal certification by the EAC last August under new test protocols which "should not have received the EAC's approval," according to the letter penned by Aaron Burstein and Joseph Lorenzo Hall, and signed by twelve other investigators and participants in the TTBR project.

The letter was addressed to the EAC's Director of Testing and Certification Brian Hancock, a longtime official at the commission with a disturbing background of helping to hedge test results for other electronic voting systems...

The world's largest corporate e-voting supplier is about to become even larger. Today, TX-based Premier Election Solutions, the beleaguered and oft-failed voting division of OH-based parent company Diebold, Inc., announced they have been purchased by oft-failed e-voting goliath Election Systems & Software, Inc. (ES&S). The move, if allowed to stand, would "consolidate most U.S. voting under one privately held manufacturer," according to one election watchdog who has announced plans to file an anti-trust complaint concerning the sale with the Department of Justice.

Diebold, facing lost money, lost reputation, lost votes and multiple legal battles, has been trying to unload its election division for several years. Having failed at first, the company created an "independent" entity, Premier --- same pig, damned near same lipstick --- in hopes of regaining money and reputation, if not votes. That failed too.

But somehow, as reported today, Diebold was able to convince Nebraska-based ES&S, the nation's largest election company and supplier of 100% unverifiable voting systems, to agree to the purchase.

Diebold says it purchased the election division from Global Election Systems, Inc., for $31 million in 2002. Today, Diebold announced it will sell to ES&S for just $5 million, plus 70% of any cash from outstanding accounts receivable as of August 31.

Unless they've made special arrangements already with Diebold, the people at ES&S --- no stranger to lost votes themselves --- may quickly be saddled with a fair amount of liability from the storied past and continuing failures of Diebold products across the country.

That is, if the acquisition, which is sure to quash any such "competition" in the market which might still exist, is allowed to stand in the first place...

I guess I'm just in the minority here, but I'm having a bit of trouble getting exercised about $165 million (just to put that into perspective, the movie sequel The Chronicles of Narnia: Prince Caspian had a budget of $200 million) in bonuses to AIG employees.

Yeah, it's a shame that approximately one-tenth of one-percent of the $144 billion made available to the company by the federal government in bailout monies went to such bonuses, but where is all the furor from public officials, media outlets and bloggers --- from both Right and Left --- over the 12 billions of dollars (with a "b") sent over to Iraq as pallets of cash (literally, shrink-wrapped $100 bills), which then simply disappeared into that trillion (with a "t") dollar rat hole without accounting or explanation?

Where is the outrage and accountability there? Nowhere.

How about the $4 billion (with a "b") that went to the Help America Vote Act (HAVA) of 2002 to purchase privately made electronic voting systems which don't work and don't meet the federal standards it was claimed that they did?

It's curious, but not particularly surprising by now, the stuff that folks in Congress get selectively pissed off about, the stuff that media (both mainstream and blogosphere) go selectively wall-to-wall over, versus the stuff they don't.

You'll pardon me if I'm not particularly moved much at all by the latest round of AIG sturm-und-drang, hand-wringing, navel-gazing, finger-pointing and speechifying. Oh, and about the still-free bin Laden, and the still-free anthrax killer...well, don't get me started. Guess those things don't much matter.

Guest Blogged by Andi T. Novick, Esq.

New York is the last state in the nation to have a non-computerized, transparent voting system. We still use immutable, theft-deterring mechanical lever machines to count our votes. (* - Please seen bottom of this article for a quick explanation of how lever machines work, for those who may not know.)

New Yorkers are fighting to keep their current voting system, notwithstanding that New York's legislature passed a law in 2005 that says we should give up our observable, reliable levers in exchange for unreliable, concealed software-based vote counting machines. Nearly 1,800 New Yorkers have signed a petition, and three counties (Dutchess, Ulster, and Columbia, all PDFs), have passed resolutions to save New York's lever voting system.

The Association of Towns (half of New York's entire population lives in towns) recently passed a resolution to save the levers [PDF], and Nassau, Greene, and other counties are presently considering similar action to retain New York's lever voting system.

Moreover, reliable sources have confirmed for me that neither the Governor nor the Attorney General nor the State Legislature that passed the "Election Reform and Modernization Act" (ERMA) want to replace the levers anymore either (what politician would want to be responsible for choosing to cut essential programs for hungry children or the elderly, just to be able to replace our superior and affordable voting system with budget-breaking computers that are notoriously corruptible and defective?). But the State Legislature has not repealed ERMA and the Attorney General, to date, has supported the State (not the citizens).

So what is driving New York State to stick with a law that so many in New York believe to be such a bad idea? As a New Yorker who has been talking to many election commissioners, legislators and citizens, I was surprised to learn how many people believe the "Help America Vote Act" (HAVA) actually banned lever machines.

I read HAVA. It clearly does not ban levers. I recently discovered what has helped fuel this misinformed opinion in part: it is the discredited position of the discredited U.S. Election Assistance Commission (EAC), as detailed in a newly-unearthed document prepared for the state of Pennsylvania, at their request, in regard to the legality of lever voting machines.

Although the agency is not a court of law, and not even an agency deserving of deference for its opinions --- its allegiance has clearly been shown to be not with either voters or democracy --- the "HAVA-banned-levers" rumor was given the imprimatur of the EAC through this little-noticed document...