NY: Nassau Files Suit Against State in County Supreme Court - Declares Lever Ban Unconstitutional

[Wilms]

No link I'm yet aware of.

For a judgment pursuant to Article 78 and § 3001 of the CPLR:

a. declaring that the New York Election Reform and Modernization Act ("ERMA") statute violates Article I, Section I of the New York State Constitution and is therefore unenforceable;

b. declaring that the ERMA statute violates Article II, Section 8 of the New York State Constitution and is therefore unenforceable;

c. declaring that ERMA violates the New York State Constitution by requiring local boards of elections to use electronic voting machines that delegate the sovereign function of supervising elections to private parties;

d. declaring that ERMA violates the New York State Constitution by requiring local boards of elections to use electronic voting machines that violate the right to cast a secret ballot;

e. declaring that respondents actions are violative of voter intent the New York State Civil Rights Act;

f. that respondents actions in certifying machines on December 15,2009 are arbitrary, capricious, an abuse of discretion and contrary to law;

g. that, in the event petitioners-plaintiffs must comply with ERMA that they not be required to deploy the new ERMA optical scan voting machines until the Fall of 2011 at the earliest.



The County of Nassau, the Nassau County Board of Elections hereby allege as their petition for declaratory judgment pursuant to section 3001 and Article 78 of the New York State Civil Practice Laws and Rules ("CPLR") and allege the following in support:

PRELIMINARY STATEMENT

1. This lawsuit challenges the constitutionality of state legislation that jeopardizes the integrity of New York's electoral process by discarding highly-regarded lever voting machines that have served the state reliably for nearly a century and substituting computerized voting technology that is notoriously vulnerable to systemic hacking, tampering, manipulation and malfunction. Acting pursuant to the New York Election Modernization and Reform Act ("ERMA"), respondent New York State Board of Elections ("SBOE") has required localities to select computerized optical scan machines that, in significant ways, combine the worst security vulnerabilities of both nineteenth century paper balloting and twenty-first century computer technology. This mandated technology leaves the door wide open to traditional voter fraud schemes inherent in paper balloting while at the same time employing a technology that is susceptible to a battery of hitherto unknown computerized threats, including computer viruses, malware, moles, worms, time bombs and Trojan horses -all of which can be employed to manipulate the vote count in innumerable ways including altering the outcome of races, switching candidate voting totals, dropping votes from certain candidates and adding votes for others.

Moreover, computerized tampering can be perpetrated in a way that evades detection by even the most sophisticated testing protocols and scrupulously-followed security procedures. In addition to their vulnerability to deliberate tampering and attack, the computerized machines and the related software are prone to undetectable malfunction which can have an equally devastating effect on the reliability of elections. The new technology is susceptible to far greater inaccuracies than the lever machines, and because they depend upon paper ballots are far more difficult to audit. The resulting risk of widespread disenfranchisement and subversion of the democratic process is repugnant to the New York State Constitution.

2. Not only do the computerized optical scan machines pose a grave threat to the security and accuracy of elections, they also employ an opaque technology that deprives the public of a transparent electoral process and strips election officials of their ability to supervise the conduct of elections in the state and insure their integrity. Mandatory duties of the Elections Commissioners will instead be performed by outside vendors and computer programmers in contravention of law.

3. This violates the constitutional mandate of bipartisan administration of elections and effectively delegates the undelegable official duty of electoral oversight to private vendors, software engineers and computer technicians. Finally, wholly apart from the flaws in the technology, the SBOE has applied the ERMA legislation in a manner that is arbitrary, capricious, and unlawful, by failing to approve and certify the new machines until it was too late for local boards to effectively take all of the complex technical and logistical steps necessary to safely deploy them.