MANHATTAN (CN) - In a hearing before the 2nd Circuit Court of Appeals, Nassau County Attorney John Ciampoli warned that the transition from lever-pull to electronic voting machines will cause "electoral chaos" in the primaries, and that all it will take to "fix" an election is a flash drive that anyone can buy at Staples. Ciampoli said a person with a flash drive would need "approximately 5 minutes of access" to fix an election.
"If you want, you can go to Staples and buy flash drives that comply with these [ES&S DS-200 voting] machines, and you can fix the results of the election," Ciampoli said.
Ciampoli said that lever-pull voting machines, by contrast, are "incredibly tamper-resistant" and guarded by "one-way seals."
But attorneys for the New York State Election Commission and the U.S. Department of Justice said that the electronic machines were necessary to comply with a federal mandate to make voting machines more accessible.
Two years after the voting irregularities in Florida during the 2000 presidential elections, Congress enacted the Help America Vote Act (HAVA), providing federal payments to states to replace punch-card and lever-pull systems with computers.
The New York Legislature passed an Election Reform and Modernization Act to implement HAVA's mandates statewide in mid-2005, which did not provide enough time for the state to meet its implementation deadline.
The federal government sued the New York State Board of Elections in 2006, and since then, a federal judge has entered three remedial orders directing the state elections board to comply with HAVA.
But after New York State acted, Democratic and Republican commissioners in Nassau filed a lawsuit, on March 8, 2010, claiming the Election Reform and Modernization Act is unconstitutional, for mandating a technology that will disenfranchise voters.
In the Wednesday hearing, Chief Judge Dennis Jacobs appeared to agree with Nassau County's assessment of the competing voting systems.
"It seems to me that these new machines are more prone to fraud on a mass scale than a lever machine," Judge Jacobs said.
Department of Justice Attorney Conor Dugan said, "I do not know" how susceptible the systems are to fraud.
Still, he and Paul Collins - the Republican lawyer for the New York State Board of Elections - said the electronic systems must be used for upcoming elections to avoid the chaos that Nassau County warned about. Dugan and Collins said that most New York counties already have set up outreach and education programs for the transition to the new machines.
The chief judge seemed dubious about that argument, noting that lever machines have been used across New York State for "decades" and should not be difficult to return to the public.
"Tell me why that would cause chaos," Judge Jacobs said.
Judge Jed Rakoff urged both sides to tone down the "chaos" rhetoric, noting that throughout the history of lever and electronic machines, "I don't recall reading that the republic fell."
"We are not Luddites," Ciampoli insisted, saying that the transition to electronic machines began before the machines were properly tested.
(Luddites were early 19th-century Britons who destroyed mechanical looms as the Industrial Revolution gathered steam, arguing that the new technology would destroy their livelihood, their families and society. Ever since, Luddite has been used as a denigrating term for people who oppose technological innovation.)
After the hearing, Ciampoli said in an interview that after a New York Supreme Court judge ordered the ES&S DS-200 voting machines to be tested, the voting systems giant interfered with its completion.
"The manufacturer is fighting us and trying to keep us from getting the materials the law requires the state board to hold in escrow. So we're not able to complete the test until we have that," Ciampoli said.
He said that the available information shows that the new machines' safeguards against fraud do not require sophisticated computer hacking to circumvent.
"The internal flash drive is protected by six screws. I believe it's 'high-tech' security because it's a Phillips-head screwdriver you need," he said.
Ciampoli said that promotional materials on ES&S's website "brag" about having Ethernet ports, which "frightens" him.
"There was one contested election in Ohio when a machine was connected to a phone jack all day. No one knew what went in or what went out of the machine. ... Essentially, it's untraceable," Ciampoli said in the interview.
In June, the NAACP and other advocacy groups also opposed the new machines, claiming they will disenfranchise ethnic and language minority voters confused by how the systems handle "over-votes."
During the hearing Wednesday, Department of Justice Attorney Dugan said the electronic machines can be verified by a "paper trail." But Ciampoli said that only 3 percent of the machines will be audited, at random.
Ultimately, the judges' ruling on whether to allow Nassau to pursue its action in state court may come down to a question of jurisdiction, rather than the merits or problems of lever and electronic machines.
Since New York State accepted federal money to change to electronic machines, Dugan says it is bound by federal law.
Judge Reena Raggi told Ciampoli, "You have been enjoined from taking actions which the district court thought intruded on the implementation of these other machines."
Ciampoli replied that, with the integrity of New York elections at stake, Nassau County asks "the court to hold the door open."