Common Cause/NY Appeals Recent Ruling that Allows BOEs to Purchase Flawed Voting Machines

NEW YORK, NY (05/28/2024) (readMedia)-- Earlier this month, Common Cause/NY, The Black Institute and 5 individuals appealed a recent court decision that purported to end the parties' suit without ruling on the legality of the New York State Board of Election and their decision to certify the ExpressVote XL: a touch screen voting machine that allows voters to mark their ballot electronically instead of on traditional paper ballots. The plaintiffs contend that the machine does not let voters verify their ballots independently and privately, as required by New York election law. Additionally, the groups argue that there is a real threat because local Boards of Election have begun to purchase these machines. Now the Supreme Court of the State of New York, Appellate Division, will determine whether to hear the case.

Last Monday, the parties also moved for a reargument of the court's decision or, in the alternative, to allow the plaintiffs to amend their complaint to point out that Erie and Monroe Counties are purchasing the machines. Nassau and Suffolk County have said they plan to use the machines in 2025, as well.

This appeal comes on the heels of another election cycle where the ExpressVote XL malfunctioned. In November's election, voters again used these machines in Northampton County, Pennsylvania, four years after an earlier problem with the machines not recording votes. The machines produced ballot summary cards with selections for judicial candidates that were inconsistent with voters' selections causing confusion as to whether voters were accurately recorded.

READ the petition.

"The certification of the ExpressVote XL – an expensive and substandard voting machine – was a major step backwards for New York, and an exceedingly poor decision ahead of the 2024 presidential election year when election security remains a fraught topic. Paper ballots marked by the voter -- which New York currently uses -- are the preferred election security standard. We're hopeful the Albany County Supreme Court and the Appellate Division will allow the lawsuit to continue and be decided before the 2024 election," said Susan Lerner, Executive Director of Common Cause/NY.

Phillips Nizer LLP is representing the plaintiffs pro-bono. Marc A. Landis, managing partner of Phillips Nizer, said, "We are proud to continue our voting rights work by representing Common Cause/NY and The Black Institute in this effort. Protecting the integrity of the voting process for every single voter is of paramount importance."

Under New York State Election Law §7-202(1)(e), all voting machines must provide voters with "an opportunity to privately and independently verify votes selected and the ability to privately and independently change such votes or correct any error before the ballot is cast and counted." The ExpressVote XL, however, utilizes a ballot summary card that relies on a barcode to count votes making it impossible for voters to verify or correct before the votes are cast and counted.

In August of last year, over the objections of numerous groups and voters, the NYSBOE voted to certify the ExpressVote XL for use in New York State. Boards of Election Commissioners in New York City, Ulster, Onondaga and Chautauqua counties have previously said they have no immediate plans to buy the machines, citing previous issues with them.

BACKGROUND:

In September of last year, New York City Public Advocate Jumaane Williams introduced Resolution No. 774 to the New York City Council, which calls on New York City's Board of Elections to refrain from purchasing any voting machines that do not allow for paper ballot verification. The resolution was further affirmed by New York City Comptroller Brad Lander, who expressed support for the resolution in a letter sent to Council Speaker Adrienne Adams earlier this month.

Other organizations, including the Let NY Vote coalition, have sent letters to the NYSBOE demanding they reject the certification of the ExpressVote XL machine. Read the letters here. The Daily News, Buffalo News and they have also editorialized against certification of the machine.

Last year, Assembly Member Brian Cunningham and Senator Cordell Cleare introduced the Voting Integrity and Voter Verification Act (VIVA), legislation that would guarantee the use of paper ballots in elections. VIVA passed in the New York State Senate in June with bipartisan support, but never made it out of the Election Law Committee in the Assembly last term. In October 2023, New York City Council Member Gale A. Brewer introduced Resolution No. 809 in Council, which calls on the New York State Legislature to pass – and for the Governor to sign – VIVA. The resolution highlighted concerns from security experts about the possibility of Election Day issues caused by the machines.

Common Cause/NY released an updated report on the ExpressVote XL called "The ExpressVote XL: Still Bad for New York's Elections" that detailed several instances in which the machine incorrectly recorded votes and made verification difficult. Common Cause/NY's updated report on the ExpressVote XL identified the following major issues:

• Vulnerable to software and hardware malfunctions and programming errors.
  • Since 2018, municipalities that used the ExpressVote XL have seen long lines, glitchy touchscreens and ballot jams. In Pennsylvania, roughly 30% of the machines allowed voters to select only some candidates' names, and not others.
  • Touchscreens malfunction can cause long lines for voters. A Pennsylvania Department of State analysis concluded that the XL accommodated significantly fewer voters per hour than sites in New York where paper-marked ballots were available.
• Prone to undercounting votes
  • In a race in Pennsylvania, a candidate was recorded as having 164 votes on election night, but after a manual recount the same candidate had over 26,000 votes, winning the race. County election officials later issued a bipartisan rebuke of the voting machine.
• Difficult to verify
  • The ExpressVote XL utilizes a ballot summary card in barcode format that is difficult for voters to verify and undermines trust. In 2019, Colorado banned barcodes for ballot counting, citing security concerns.
• Expensive
  • The ExpressVote XL will cost either $11,491 or $12,207 per unit depending on quantity. This is far more expensive than other voting machines. Additionally, it will cost more money to store and transport the machines, as well as backups should any fail.