- By Office of NYS Assemblywoman Barbara Lifton
November 28, 2016
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-000
Dear Attorney General Lynch:
I am writing to request an audit of the 2016 election, both the voting machines and the chronic and continuing matter of voter disenfranchisement through purging. Our elections are being called into question by national figures. President-elect Donald Trump continues to say, as of today, that millions of Americans have voted fraudulently. And people on the left – particularly Jill Stein of the Green Party - have called for a recount in three states, due to her concerns about possible hacking and disenfranchisement, as I understand the Green Party request. Now a recount will happen in one and perhaps other states, but I am greatly concerned that this limited recount will not restore the trust that is required in a strong democracy.
Just a bit of background: When New York State, under then-Governor George Pataki, was implementing the Help America Vote Act (HAVA) from 2003-2008, I was on the Assembly Committee on Elections (and still am). When the new state election law was signed, I was appointed by the Assembly Speaker to represent him on the advisory committee to the State Board of Elections throughout the regulatory process, which included the critical issues of computer security, both technical and chain of custody, and the actual choosing of vendors who met our strong state standards. In other words, I spent an enormous amount of time over five years studying this issue and monitoring New York's progress.
I got involved in this matter because I was greatly disturbed about both the politicization and secrecy of Governor Pataki's HAVA Task Force and the completely inadequate Task Force proposal, which, among other things, called for a state driver's license as the only election ID, a form of ID which 3.4 million New Yorkers did not possess. We spent approximately two years in a long, heated battle, under a great deal of pressure from editorial boards and a federal judge, as we fought, successfully, for many important protections with the voting machines -- and the franchise -- for all New Yorkers.
But that process also left me deeply concerned about the voting machines in other states. As our Board of Elections cancelled the contract of the computer security firm that was testing the prototype voting machines for doing an unacceptable job of testing, I learned that that same firm had "certified" voting machines in numerous other states. Ever since the federal government passed HAVA in 2002, there have been serious concerns raised, both by computer security experts and ordinary citizens, about the security and functionality of the new computerized voting machines. Our nation's top computer security experts at MIT and other institutions have long urged that the federal government conduct routine audits of all federal elections. Auditing the entire national election would require checking an estimated half a percent of paper ballots, according to Dr. Rivest of MIT and University of Berkeley statistician Philip Stark.
The technology magazine WIRE has written about this critical issue many times. WIRE recently quoted a computer security expert Poorvi Vora of George Washington University who says: "Brush your teeth, eat your spinach, audit your elections." In a transparent democracy, we should be doing audits, simply as a matter of course, to ensure that the vast majority of the public trusts the election results. Instead, audits, and the nature of those audits, have been left to the discretion of any given state, and my experience in New York State argues against such broad discretion in federal elections. There have been serious charges of partisan domestic hacking since HAVA was implemented, and now many seem to have great concern about Russian hacking, given their earlier hacks of Democratic computers. Even though some experts dismiss those concerns, what really matters in a transparent, well-functioning democracy is what the average American perceives to be the case, and the concern about possible Russian hacking is likely widespread, in my view. I don't see why our federal government would let such pervasive doubts stand rather than disproving them through a forensic computer audit.
In addition to the issue of possibly-compromised computer voting machines, there has been very important reporting over the past few months by reporter Greg Palast, who catalogued, in his book The Best Democracy Money Can Buy, the deliberate, illegal purging of tens of thousands of voters in Florida in 2000, admitted to in court by Katherine Harris and the state of Florida in their settlement with the NAACP and People for the American Way. Mr. Palast has more- recently been reporting on the Interstate Voter Crosscheck Program, run by Kris Kobach, the Kansas Secretary of State, and Palast is very concerned that Voter Crosscheck lists may have been used to illegally purge tens of thousands of voters in at least some of the many states that participate in that program. Such purging would be in addition to the purging done by voter-caging, already acknowledged and halted by several federal judges just before the November 8th election.
I have grave concerns about Voter Crosscheck purging, because the New York State Board of Elections, I recently learned, was doing a trial-run of this national purging program, whereby 29 states send their entire state voter databases to Arkansas and then Kris Kobach in Kansas, where they are matched against each other, ostensibly to find people who might be registered to vote in more than one state. Then they would send that list of matches – and possible purges -- back to each state. Unfortunately, the Crosscheck Program only uses a couple of data points, first and last name and date of birth, to make the matches, so the lists being sent back to all those states, are faulty in the extreme. For example, when New York State's list that came back from Kansas, I recently learned, it had about 400,000 matched names that might then be eligible for purging, or about 3.3 % of our database, an astonishing number.
After making inquiries, I am happy to say that New York State seems to be carefully abiding by the National Voter Registration Act (NVRA) of 1993, using the due diligence required before purging any voter. Using many more data points, such as middle initial, date of voter registration, etc., the New York Board of Elections had pared their list to only 30,000 possible purges, an expected number for a state of about 20 million people and a state from which new entrants to the country move to other states with greater-than-normal frequency. This number is a far cry from the 400,000 sent back from Crosscheck. In fact, I am told that New York was merely testing the Crosscheck program for accuracy and no purging has occurred in New York under this program. Nevertheless I am urging that New York never participate in this program again, since the Crosscheck Program uses our voter database, and other states' databases, to create what are clearly extremely faulty lists for other states.
The reason I am asking the Department of Justice to audit this component of the election is that I have been unable to verify, in the short time I have been aware of the Crosscheck Program, that the many other participating states are employing the same due diligence required by the NVRA, as has New York State. I certainly hope that they are, but one has to wonder why states would continue to participate in a program that produced such very faulty lists in the first place, especially when the ERIC list-matching program is available, which I am told, has a very high accuracy rate of over 99%. I have been told that the Crosscheck Program is free and ERIC is not, so that may be why many states decided to use it.
There is a reason we have recounts and audits in election law; they are meant to be used when necessary, and I believe they are necessary now. Again, I strongly urge that your Department of Justice put these many concerns to rest by conducting any and all necessary audits of the November 2016 election. Many thanks for your consideration of this most-essential matter.
Barbara S. Lifton
Member of Assembly
Cc: Carl Heastie, Speaker, NewYork State Assembly
U.S. Senator Charles Schumer
U.S. Senator Kirsten Gillibrand
Michael Cusick, Chair, Assembly Committee on Election Law