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bill biamonteOctober 24, 2008

Science Friday Interviews William Biamonte, Democratic Commissioner of Elections for Nassau County, New York

Host: Ira Flatow
Camera: Carl Flatow
Released on October 24, 2008
Recorded on September 12, 2008
15 minutes (9-part video series) 

Today, Science Friday released a nine-part video interview of William T. Biamonte, Democratic Commissioner of Elections from Nassau County, New York on its Science Friday program.  Biamonte details the problems with transitioning from machines that allowed for complete control by election officials to those completely controlled by private for-profit corporations with no accountability to the public.  He discusses the constitutionality of laws and court rulings that require the use of machines that cannot be certified as accurate and reliable, and includes a cost analysis for taxpayers.

New York was the first state in the nation to adopt paper ballots.  When rampant paper ballot fraud then ensued, New York was the first state in the nation to adopt lever technology – specifically to remove paper from the process.  It is also the first state in the nation to resist the adoption of software driven voting systems.    

Video 1.  Who Controls Voting Machines? 

What- the concern that we have during our first trial run is that come to the realization, you know, you always saw it as a concern, when you actually have to deal with it yourself as an election official is that while using this new technology, you are now relying on the machine company vendor to help you provide services to the public, which up until this election we didn’t have to do.  We were pretty self-sufficient here.  We could, we could use our own levers, fix our own levers, replace broken parts, set our own ballots, print our own ballots, get the machines delivered through, uh, trucking contracts. 

Now, on every issue in terms of the machines, the repair of the machines, the program of the machines, the parts for the machines, we have to rely on a private company, private corporation – for-profit corporation – that has no accountability to the public. They’re not appointed; they’re not elected.  They’re a private company.  If they, uh, when we’re…

At the full plan implementation – Plan A – we were doing a full rollout; levers are gone and these are the machines, and we’re relying on them, if for some reason they pull out their support, the election, the election voting system in the State of New York is dead in the water until someone can come up with a solution.  That’s a horrible place for, uh, democracy to be in – to be relying on private corporations for that.

Video 2.  800,000 Voters 

Nassau County is a huge county.  It’s a major suburban county on Long Island and it’s the place where suburbia was born.  In New York State, we’re the largest voting county outside of the City of New York.  We have basically 880,000 registered voters.  In some… Nassau County probably has more voters than some states do.  Sarah Palin’s entire state has 600,000 registered, uh, voters in the entire state, so we have more than the entire State of Alaska in one county. 

Lever voting has been consistently used here successfully for the last fifty-sixty years with minor if no, no controversies whatsoever.  You have the lever machines which are pried, uh, tried and true machines that, you know, we know work, that we know are trustworthy.  We know are reliable.  We know that we can use them ourselves without any help from anybody else.

While the Republican Congress passed the Help America Vote Act in response to Bush’s election which was, you know, controversial – it had to be decided by the Supreme Court.  And, one of the things that the Help America Vote Act did was to call for the ceasing of use of lever, lever voting in parts of the country.  [sic*]  So, other countr-, other states have moved on and implemented electronic voting and a lot of these states have also crashed and burned.  Well, Congress reacted to the fact that they had an election and they had a presidency that legitimacy was questioned, so they passed what was seen as a sweeping vote reform, voting reform legislation that would create unanim- uniformity and standards.

One of the things that happened in Florida in 2000 was they had different machines and different standards in each of the counties.  So, it was hard to implement a real recount and that just created more and more confusion.  Their, their attempt was I think just to put a band-aid and show that they did something, so people wouldn’t be as angry as they were, um, what they felt was an election that was, you know, in question.  

Video 3.  Two Implementation Plans 

In 2006, the Justice Department sued the State of New York for noncompliance with the Help America Vote Act.  New York was No.- New York was and is No. 50 in compliance in the country.  That’s a bad thing, but it’s also a good thing, too, because as other states have had horror stories with their voting machines and had to actually replace their entire voting systems, like as occurred in Florida and California, New York State has stood on the sidelines and watched that and hopefully learned something from it.  The pace of their moving to implement, I think they’ve made a lot of mistakes but the degree that we haven’t moved as fast and implemented two years ago, um, may have been a benefit to us. 

The first phase of this consent decree is known as Plan B.  Plan B requires one handicap-accessible ballot marking device to be placed in every polling location within the State of New York.  And in my county, Nassau County, we have 400 locations.  We have 1100 and change election districts.  Part of Plan B is that that machine will be there to assist the handicapped voter, while the rest of the voting population will continue to vote on the lever machines.  

Plan A, which is also known as full implementation, requires the levers no longer be used by September of ’07 – I’m sorry; I’m sorry – September of ’09 and that they be replaced by optical scan machines.  Where we are at right now is that these machines haven’t been able to be certified on the federal or state level.  New York State has very stringent certification standards and so far the vendors and the machines haven’t been able to meet those standards.

What I’ve seen so far is that, on a system wide basis, there are problems implementing because I don’t think the technology is ready yet.  The voting technology is not ready for prime time.  Or if they try to implement it, at least in New York State, what I’ve seen personally.  

Video 4.  Federal Override? 

They’ve approved three voting systems, two of them which are being used in New York State.  One is Sequoia, which is being used in most of the counties and the ES&S system which is being used in New York City.  Um, they’ve been submitted to the New York State for certification.  They’ve been submitted to the federal Election Assistance Commission for certification.  None of them have been able to be certified.   

One of them – when we picked Sequoia, we were told that they would probably be certified some time in March or April.  We are now in almost the middle of September and the situation’s gotten worse.  They haven’t been able to be certified.   

The co-chair of the State Board of Elections sent out a email to the Elections Commissioners about a month ago saying that he was very concerned that they weren’t going to be able to meet established timelines under this federal consent decree and it’s possible these machines may not be able to be certified.   

And, in that case, Nassau County has purchased $5 million worth of machines that can’t be used for the purpose of actually scanning and counting the ballots.  Right now, the machines that we have now have – has a optical scanner and a handicapped accessible ballot marking device.  The theory was that we could have used, under the Consent Decree, we could have used one in each one of the 400 polling places this November and continue to use the lever machines, and then come ’09, replace the lever machines and get an additional 800 optical scanners, keep the ballot marking device in each one of the polling places, and the optical- the additional optical scanners will fill in the place what the levers are doing now.

If these machines can’t be certified for use, they can’t be used.   So, that creates a problem because the judge has demanded a timeline.  The Justice Department and the State of New York has agreed to a timeline that says this happens in September of ’09.   

And then it becomes a constitutionality issue.  Can they force us to use machines that are not certifiable?  That can’t be done or haven’t been demonstrated to be absolutely accurate and, and auditable, and reliable.  

Video 5.  $5 Million Down the Drain? 

And we’ve had, we’ve had tussles with the, with the vendor, with the State.  I think, you know, everybody’s tried to do everything but I think the State Board of Elections is a small agency that is being overwhelmed by what they’re being required to do.  They have a small staff, uh, a number of staff members that could help them.  They’ve been using outside vendors. 

Initially, when we got our first several hundred machines, we had a lot of problems with, you know, broken machines, cracked monitors, uh, dead batteries, you know, uh, poor fabrication of it.  And, we’ve been working with the vendor and the State and the Justice Department for the past several months on a remedial plan to get those machines repaired or replaced and so far, it’s going pretty well.  You know, the major problems have been corrected.  And we’re awaiting a delivery of another 210 machines as of today, which is September 12th and, uh, hopefully, we’ll be, uh, those machines will be better received than the other 240 we received. 

We would hope that we would be in a position that the machines that we actually buy, and spend millions of dollars on, are machines that we can actually use.  But that’s in question right now whether that’s even the case.  We’ve spent about five million dollars on these new machines and we know we can use them as ballot marking devices.  But, right now, we don’t know if we can actually use them as scanners to count the vote.  

Video 6.  Guinea Pigs? 

Has been using it…, the Dominion ImageCast machine, the optical scanning components, have been used somewhat successfully in the Ontario Province of Canada.  We’ve done research on its history and it’s, you know, they gave us some degree of comfortability. The new component that they’ve partnered with this – this ballot marking device where you have an audio component; you have the, you know, the technical keyboard; you have a rocker panels; you have a sip-and-puff apparatus – that’s a totally new component that my understanding is has never been used anywhere in the United States or anywhere else.   

So right now, we really are the guinea pigs for a new type of system.  And, I think that’s a lot of the problems that we’re seeing are they’re rushing this new model or new, um, technology into the market without it being fully tested.   

In Nassau County where we had a Republican primary, we had 146,000 eligible voters.  Only twelve voters actually took the time to vote on these machines.  So, the jury’s out. 

Video 7.  What the Hack 

Up until now, we used the lever technology machines.  On those things, you could tell if they’re working, pretty evidently.  If there’s some, some reason it’s not recording a vote, you’ll know about it right away.  So you open the back of the machine and the votes either will be there or they won’t be there.  Uh, and there’s very little play.  If the lever machine goes down, it usually goes down – the entire machine goes down.   

This new technology, what we’ve – with the new voting machines, what we’ve done as we’ve gotten deliveries, we’ve actually sat there and fired up to make sure that everything on it works.  That’s when we’ve encountered problems – when we tested to see if everything works.  It think there’s been two dozen individual studies that show that this, uh, voting machine technology software – no matter what the vendor, or the, or the system is – it is susceptible to hacking. 

So you ask yourself, “Why would we agree to a system like that?”  And that’s one of the things that Congress really never addressed in the Help America Vote Act. 

Um, one, the only thing we can tell you here is that when we had these machines, the chain of custody is followed; whereas we have security seals on all the cardholders, the doors, anything that can be tampered with has security seals with bar codes and numbers on it.   

Any time a machine is touched, the people who are touching has to be a bipartisan team, whereas one Democratic technician and one Republican technician.   

And that’s not a perf- – it’s a good system; it’s not a perfect system.  And you have, you know, a myriad of security issues you have to be concerned about. 

One of the things that has to happen for every new election is that everything has to be zeroed out at least to the point that we can tell that no votes have been added or anything else, and a ballot has to be programmed.  So if there’s gonna be any tampering with the ballots being programmed – that’s where the tampering could be.  And the ballots are tampered by bipartisan teams.   

Is it… I mean, I’ve heard all different stories where computer scientists have put, you know, these little dime-sized magnets on the side of the machines that was able to transmit.  And, they’ve able to get into your USB ports and do certain things, and, and um… It’s all about, you know, chain of custody and bipartisan oversight. 

Video 8. HAVA Headache 

The federal government under HAVA what they did was that they to some degree financed states, uh, states’ implementation of HAVA.  New York’s been holding its money for several years now.  Nassau County’s portion of it, um, is – and every other county’s portion of it – is being managed by the State.  So when we purchase these machines, it’s coming out of the federal money that’s been allocated to the States to be broken up by the counties. What I’m concerned about is that if this thing keeps dragging out longer and if these machines can’t be used, if we do have to do some type of replacement to go to a different system, then the federal money will not be able to cover the costs of the transition to non leer voting.  That means the local taxpayer will have to pick up the cost of several million dollars to buy these machines, which wasn’t the intent of HAVA.  It was supposed to be that the local governments didn’t have to pay for it and the federal government was paying for it. 

Video 9.  Sleight of Hand 

One of the things that New York State did right, that was a, was a, that was a good move, and a very, uh, progressive move, was that New York State has its own version of the Help America Vote Act.  It’s called ERMA – the Election Reform and Modernization Act.  And one of the strong points of ERMA required that any vending machine company [sic**] that wanted to do business in the State of New York is required to escrow their source codes with the State Board, so they could be tested. 

The vendors all applied for certification.  Then when it came time to surrender their source codes, they hemmed and hawed that they were using like Microsoft technology; and Microsoft, as their vendor, would never surrender their source codes.  And then they claimed that it would take them a year to develop their own software program that they could then escrow.  But what they left out was when they said that, that it would take a year, it was two and half years from the time that they applied for certification.   

So if they were really serious about following New York State’s standards, they would have been developing their own, um, technology and software programs that could be escrowed.   

What happened was even more disturbing with this Consent Decree.  When they got before the federal judge and the Justice Department, the lawyers for New York State said, “Judge, these machines out there will not submit source code escrow, uh, escrowing their source, uh, software, uh, source codes.   

And the conclusion was – I’m not saying it verbatim – but the conclusion, in essence, was the judge said, “I don’t care if they don’t meet standards.  I don’t care if they don’t meet New York State’s, uh, if they can’t escrow their software.  I want one machine in each polling place.” 

So, the federal judge, by his ordering that Consent Decree, allowed the vendors not to fully comply with a very important and very secure standard. 

* Attorney Andi Novick advises that HAVA does not require lever machines to be replaced.

** He meant to say “voting machine vendor”