When New York made its long drawn out phase away from ancient lever machines to electronic voting machines, it opted for a system of paper ballots counted using optical scanners. Among the main benefits of a paper ballot system, is the ability to have paper trail in case there is a need for a recount. The only problem seems to be that Albany forgot to tell us when there is a need for a recount.
As Celeste Katz at Daily News points out, there are no mandatory recount laws under New York State Election Law. The problems of the vagueness of this law were highlighted last week. Trailing by 15 votes, Frank Skartados conceded the 100 Assembly District race to Tom Kirwan. As the article points out, a hand recount of the ballots will likely reveal numerous discrepancies of how the optical scanners recorded voters’ choices on the paper ballots -- certainly more than 15. Unfortunately, we will never know.
The uncertainty surrounding the outcome of this race could have only been cleared up by examining the ballots themselves. What is the point in having paper ballots when we are unable to look at the results? Without rules for mandatory recounts, in this respect New York Election Law still remains in the dark ages of the lever machines. Legislators in Albany must make the necessary changes in Election Law that will create rules for mandatory recounts.
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Read the law first. The recently amended Election Law § 9-208 recanvass, which was on the books prior to the 2010 elections, states among other things that:
"3. If upon the recanvass of an election district, it shall be found that a discrepancy exists between the number of voters who cast a vote in an election district and the number of votes recorded on the tabulated results tape plus any election day paper ballots counted by hand the board of elections, or the committee thereof, shall proceed thoroughly to examine all the election day paper ballots in that election district to determine the result from such election district. The result of this examination of election day ballots shall supersede the returns filed by the inspectors of election of the election district in which the canvass was made."
Duh!
While this language may be unenforceable since there is almost always a discrepancy "between the number of voters who cast a vote in an election district and the number of votes recorded on the tabulated results tape..." due to: Undervotes, Overvotes, offices to which more than one person is to be elected, etc., the law does seem to require a thorough examination of ballots that would otherwise be counted only by computers (ballot scanners).
Since such an examination is likely to occur in EVERY election district in the state if this law is actually enforced, it's a back-door way of requiring 100% hand counts. (As if THAT'S going to happen!)
So do we have election lawyers who don't read election laws? Or is this particular law so badly written as to be interpreted as gibberish by the courts and the rest of us? Readers can decide for themselves.
In any case, I don't see anyone else bringing this up, so it must be an embarrassment for SOMEONE.
If we want to fix our election system, we need audits that automatically count enough votes by hand in each contest to provide confidence in the apparent winner, or result in a different winner by leading to a full hand count.
That's NOT the 3% spot check in EL § 9-211.
It's NOT vague, unenforceable "recanvass" laws.
And it's NOT apparent winners and apparent losers arguing over what constitutes a "discrepancy" -- depending on which side happens to be ahead in the count at any given time.
Wake up New York! Elections are ADVERSARIAL PROCESSES, and no one wants to hand-count ONE more vote than is absolutely necessary. Necessity depends on whether your candidate is ahead.
If we can't get this right, we should go back to lever machines, rather than continuing to engage in this charade.
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