New York’s New Voting System Procedure Could Cost Tens of Thousands of Lost Votes

NEW YORK - The Brennan Center for Justice, New York State Conference NAACP, the
National Coalition on Black Civic Participation, Families United For
Racial and Economic Equality, the Working Family Party, and many other
civil rights, voting rights, good government groups and advocates called
for the New York State and City Boards to take a simple step that will
prevent tens of thousands of votes from being lost this fall.

New York State is about to use new voting systems for the first time
this fall. Under the new system voters will fill out a paper ballot and
then "scan" them into an electronic machine. The State and City Boards
have setup the new machines so that they do not give voters adequate
warning of "overvotes"- ballots that cannot be read in full because the
machine reads the ballot as having too many votes for a particular
contest. Instead of returning the ballot, as is done in many other
jurisdictions, in New York the ballot will be retained, and a computer
screen with present the voter with a confusing message that includes a
green "cast" button. Voters are not told if they press the green button,
their vote will not count.

The only other time these voting machines have been used in the same
way in a major election (13 counties in Florida in 2008), they produced
overvote rates almost 14 times higher than expected, with thousands of
votes for the presidential contest rejected - in comparison to almost no
votes rejected in the 36 counties that automatically returned the
ballots. Evidence shows that African Americans and Latinos, in
particular, were disproportionately impacted by the lack of overvote
protection.

The State and City Board can fix this problem by checking a box in
the setup files that would automatically reject overvoted ballots.
Despite numerous attempts by the Brennan Center and other voting rights
groups to make this change, they have not done so.

Consequently, today, the Brennan Center and its pro bono counsel
Jenner & Block LLP are filing the complaint on behalf of the New
York State Conference NAACP, the National Coalition on Black Civic
Participation, Families United For Racial and Economic Equality, the
Working Family Party and others to force them to ensure that there are
proper overvote protections on the new voting machines.

In today's New York Times, New York State Election Board
spokespersons took issue with the Brennan Center's proposed fix, arguing
that in order to reset the machines, it would take a months of testing
and that they would have to re-program thousands of machines.

"This is simply inaccurate," said Brennan Center senior counsel
Lawrence Norden. "Numerous sources, including the State Board, the
voting machine vendor and independent computer scientists have confirmed
to us that requiring the machines to return overvote ballots requires
only "checking a box" in the setup file for these systems. These
machines were built to allow the City and State Board to do this at
anytime. It will not cause delay to do the right thing."

"Plaintiffs are bringing this action to prevent State and City
officials from setting newly purchased voting machines in a way that
will dramatically increase the likelihood that tens of thousands of
votes are lost as a result of 'overvoting,'" said Jeremy Creelan,
partner at Jenner & Block. "In particular, plaintiffs seek to
prevent the disenfranchisement of racial and language minorities, who
are disproportionately likely to lose their votes as a result of
Defendants' new procedure."

"The State Board knows there's a problem with the way they set up
these voting machines, and that it's going to mean the loss of thousands
of votes for the elderly and people of color," said Hazel N. Dukes,
president of plaintiff the New York State Conference of the NAACP and
plaintiff in the case. "They also know there's an easy fix that would
save thousands of votes in New York City, Albany, Erie County and
elsewhere. They should make the change, and the New York City Board of
Elections should tell them to make that change."

"The solution is simple," added Monifa Bandele of NCBCP. "Have voting
machines automatically reject over-voted ballots, so that voters can
start again."

"In order for our country to carry out the important principle that
every vote should count, we should be using our machines in a way that
will ensure that, and not in a way that will disenfranchise voters,"
said Valery Jean of Families United for Racial and Economic Equality.

The Brennan Center has also compiled additional statements of support
of the suit:

Manhattan Borough President Scott M. Stringer

"Instead of making it easier for New Yorkers to have their voices
heard on Election Day, this new voting machine system turns our ballot
into an exam and silences the vote of any New Yorker who inadvertently
selects too many candidates. If the NYSBOE insists on running our
elections as though voters go to the polls intent on casting an invalid
ballot, then a lawsuit of this kind is necessary."

Aimee Allaud, Elections Specialist, League of Women Voters of
New York State

"A voter with an overvote error on her ballot should be given the
opportunity to correct her ballot before casting it. If the voting
machine is not set so that it automatically rejects an overvoted ballot,
many voters may be disenfranchised. This potential should be eliminated
by simply configuring the voting machine so that an overvoted ballot is
rejected and the voter can correct the error."

Bill DeBlasio, Public Advocate, City of New York

"Our democracy fails when voters are disenfranchised. Less than 80
days before primaries, our state's electronic voting machines contain
fixable flaws that could easily disrupt our elections. The Board of
Elections has an obligation to fix the problem before it's too late."

Margaret Fung, Executive Director, Asian American Legal
Defense and Education Fund

"I think we're all especially concerned that the training of poll
workers and education of Asian-language voters are going to be huge
issues with respect to the new voting machines. So, it's critical to
deal with this overvote issue to avoid further problems."

Susan Lerner, Executive Director, Common Cause/NY

"In deciding to ignore the standard procedure for dealing with
overvotes, The State Board of Elections seems to be confused about the
purpose of conducting an election. While everyone wants to be sure that
voters are not subjected to unnecessary delays and inefficiencies on
Election Day, people do not vote in order to have a good voting
‘experience', they vote in order to have their vote counted. It is a
shame that it is necessary to file a lawsuit in order to force our
election authorities to use good common sense and ensure that the votes
that are cast are cast in a way that ensures they will be counted."

Bo Lipari, Founder, New Yorkers for Verified Voting

"New York's voting machines should provide voters with every
opportunity to change mistakes on their ballot. Returning the ballot in
the event of an overvote is an important way to inform voters of a
problem."

"Changing the scanners to return an overvoted ballot only requires
flipping a switch in a settings file. At startup, the scanner reads this
file to determine, among other things, whether an overvoted ballot
should be returned or retained. This change does not require
reprogramming the machine software in any way, and will not cause any
delay in preparation for the upcoming elections."

Rima McCoy, Voting Rights Coordinator, Center for
Independence of the Disabled, New York

"Voters with disabilities who need accommodations to cast their
ballots may lose their hard won private and independent vote over a
technicality that the Board of Elections could easily solve. Poll
workers coping with learning the ropes of a new voting system may be too
overwhelmed to help voters understand an over-vote message on the
scanner. Now that those of us with disabilities finally have a voting
system that allows us to cast our ballots like everyone else, it would
be painfully ironic to lose our vote due to a confusing over-vote
procedure that is easy to fix. The BOE must do everything in its power
to ensure that every vote counts."

Neal Rosenstein, Election Specialist, New York Public
Interest Research Group

"By refusing to configure new optical scan tabulators to make it
easier for voters to understand and correct mistakes on their ballots,
the Board will cause countless thousands upon thousands of lost votes.
Perhaps they should also rename themselves the Board of Rejections."

Marjorie Kelleher Shea, Director at Large, Women's City Club
of New York

"New Yorkers should be able to correct mistakes as they cast their
ballots on the new machines. State law says that if voters mark their
ballots for more than one candidate for a single office, i.e.
‘overvote,' they should be notified and given a chance to privately and
independently change it before the ballot is scanned and counted. To do
less disqualifies voters."

For more information, please contact Jeanine Plant-Chirlin at
212-998-6289 or 646-265-7721 or jeanine.plant-chirlin@nyu.edu.