Editorial Memo: NYCBOE Attempts to Circumvent Necessary Protections to Buy Flawed Machines

NEW YORK, NY (04/19/2019) (readMedia)-- TO: EDITORIAL BOARDS

FROM: Susan Lerner, Common Cause/NY

Susan Greenhalgh, National Election Defense Coalition

SUBJECT: New York City Board of Elections Attempts to Circumvent Necessary Protections to Buy Flawed Machines

DATE: April 19, 2019

On March 29th NY1 News reported that the New York City Board of Elections had written a letter to the New York State Board of Elections asking to waive the mandatory State Testing and Certification of voting equipment so that the City could purchase Election System & Software's (ES&S) ExpressvoteXL ballot marking devices. The BOE's stated reason for the purchase is to comply with the state's new early voting law. Indeed, the BOE's letter declared that,"The City Board has concluded that utilizing traditional paper ballots is virtually impossible for early voting." This flat assertion is contrary to extensive experience with early voting in the 37 states that have adopted it before New York. Counties across the nation, including Los Angeles County (5.3 million registered voters), Denton County, TX (503,487 registered voters), Cuyahoga County, OH (Cleveland - 877,000 registered voters), Maricopa County, AZ (Phoenix - 2.3 million registered voters) and all the counties in Maryland and New Mexico, utilize paper ballots, often with ballot on demand systems to hold down costs and waste.

Irrespective of the validity of the rationale for the requested waiver, the proposed vendor and machines raise serious questions about:

1) Ballot efficiency and security

2) Cost

3) Conflicts of Interest

As organizations committed to secure, accessible, trustworthy elections, we strenuously oppose this request and argue in favor of ballot-on-demand printers.

Efficiency

The ExpressvoteXL does not produce a truly verifiable paper ballot. A voter must make their selection on a touchscreen, and the device then prints out a paper ballot summary (not a full ballot) of the voter's selections with a barcode that contains the voter's selections. There's no way for a human eye to discern if the barcode corresponds to their candidate choices.

A paper ballot is the only truly secure method that can then be audited if/when necessary. As such we favor ballot-on-demand printers that allow voters to mark their own ballots and then feed them into the scanner. However, the City Board of Elections opposes them claiming that the City would have to buy dozens to meet voter demand. In fact, the City would have to purchase many, many more ExpressvoteXL devices - which cost more than ballot-on-demand systems - in order to properly serve the voters and prevent waits of more than thirty minutes.

Ballot-on-demand printers can take up to two minutes to print a ballot, but once the ballot is printed a voter can be directed to one of many privacy booths to mark the ballot at their leisure without creating bottlenecks. In contrast, a ballot marking device can take up to twenty minutes to vote and only one voter can vote on each ballot marking device at a time. Logjams created by the use of ES&S ballot marking devices in Johnson County, Kansas have caused hours long lines and wait times in a jurisdiction many times smaller than New York City.

The ExpressvoteXL is also poorly suited to assist disabled voters. The Pennsylvania department of state conducted a review of the accessibility features of various ballot marking devices, AND found them inadequate for differently abled voters.

Security

The ES&S ExpressvoteXL includes a dangerous security flaw that could be exploited to tamper with the paper ballot summary card after it is cast. Once the voter marks and reviews the paper ballot summary card, the card is inserted for scanning and tabulation; however, during this process the card passes back under the printer heads. If the system is compromised it could be manipulated to mark the ballot a second time impacting the vote records. This flaw was first discovered in the Dominion Image Cast Evolution and prompted the co-chair of State Board of Elections to ask the State to review the certification of the Dominion system before deploying it in Westchester. It would be unwise and inconsistent to push through another system with this flaw.

The ExpressvoteXL has also only been used once in a small, local election in a single borough in Gloucester County, NJ recording only 1010 votes. It is irresponsible to trial this system on the millions of voters in New York City.

Cost

The City Board has argued that this rushed purchase is necessary to comply with recently passed legislation that requires early voting. This is untrue. The City Board can provide equipment for early voting without the purchase of expensive, uncertified ballot marking devices.

The ExpressVote XL is the most expensive voting machine on the market: $8,250 plus

$250 for a 14-hour battery. Most voting machines are $4,000-5,000. The XL costs more because it has a 32" 1080p HD monitor with fancy infrared sensors mounted around the

bezel and a built-in optical scanner. Voters don't need high-resolution screens and

infrared sensors to vote. Even other ES&S touchscreen options are cheaper-two

ExpressVote BMDs and one DS200 scanner in a polling place is less than the cost of two

ExpressVote XLs (and hand-marked paper ballot systems cost even less). It is the most

fiscally irresponsible choice.

NYC Board of Elections Executive Director Michael Ryan made the absurd claim the price of printing paper ballots would double because, "a redundant set of ballots would be required at early voting sites." This is illogical because the City can and should use the same pool of ballots for early voting and Election Day voting. There is absolutely no need to print twice as many ballots. He also claimed it would be necessary to delivery over 4000 ballot styles to early voting sites. This number is wildly overstated. Only a dozen or so ballot styles will meet the needs of most early voters while a ballot-on-demand printer can ensure availability of less common styles and languages.

Conflict of Interest

The NYC Board of Elections Executive Director has been receiving gifts in the form of travel from the same vendor that supplies and services the City's voting systems, and with whom he is responsible for negotiating contracts on behalf of City taxpayers. He also served on a secret Board of Advisors for ES&S from 2013 until press reports exposed the issue last year. ES&S makes the ExpressvoteXL that Ryan is seeking to purchase without State testing and certification. That Ryan has requested to bypass New York State certification to make an expensive purchase from ES&S that does not best serve New York's voters is troubling in itself.

Conclusion

The New York State testing and certification program is one of the best in the country. It exists to ensure the voting machines used in New York are secure and reliable. There is no reason why this process should be waived or avoided and no valid reason why New York City should waste millions of dollars on unnecessary and inappropriate voting machines.