Verified Voting Blog: Paper Ballots – New York Courts Don’t Get It

New York State’s highest Court has upheld lower Court decisions to stop any further counting of ballots and declare a winner in the 7th Senate District race. The decision is unfortunate on many levels, not the least of which is that it sets legal precedent in the State for how we verify election results by auditing and recounting paper ballots. New York’s Courts have now ruled, in essence, “We do not use paper ballots to verify elections.” The Court, displaying a lever-machine mindset, believed it’s okay to trust the machine. It never was of course, but New York has never had a way to verify election results before. The Court didn’t understand why we need to compare machine reported results with a manual inspection of ballots in the audit, failing to grasp that the way we get to the real result is counting the paper, not avoiding it at all costs.

The Appellate Court’s final decision uses faulty statistical reasoning to seat a candidate who may not have won. In a key section, the Court discusses why they see no need to count ballots [emphasis added]:

“The statute allows Supreme Court to direct a manual audit where the evidence shows a discrepancy indicating “a substantial possibility” that the result of the election could change.There is no such legal error where, as here, the discrepancy rate is significantly below the margin of victory, such that there is no substantial likelihood that the result of the election would be altered by the conduct of a full manual audit.

There it is right there – “there is no substantial likelihood that the result of the election would be altered by the conduct of a full manual audit.” Right there the Court’s decision falls apart, because, well, there sure is a possibility that election results could be changed by further auditing. That’s the whole point of doing audits and recounts – if you check some machines and the results are incorrect, more machines must be checked because even more errors may be found as the number of examined systems increases. The Court doesn’t even get the math right:

“Supreme Court found that the discrepancies, when projected to a full audit, would not affect the outcome of the election and denied the request for a manual audit of all ballots.”

In essence this says, “In the initial audit, we only found a few errors, if we continue to audit more systems, we will find the same number of errors no matter how many more we check, and if we add all those errors up it is would not be enough to change the election result.” You don’t have to be Charles Babbage to see the flaw in this reasoning. If you check more systems, the error rate is very unlikely to remain the same.

Here’s an example – Let’s say I have a bag full of 100 marbles, all of them white except for 10 black ones. I want to determine how many black marbles are in the bag by looking at just a few at a time and estimating the total. So I reach in the bag without looking, and take out 3 marbles. As it happens, all of the marbles I pick are white, a highly likely result given there are a total of 90 white marbles. If I were to stop here, I’d have to estimate that all 100 marbles in the bag are white. But I reckon I probably should look at some more, so I take out another 5 marbles. This time, 4 of the marbles are white, 1 is black. Now I know there are indeed some black marbles in the bag, so I figure I better keep looking. I take out another 12. This time I’ve picked 4 black marbles, the most I’ve seen so far in one pick.

Each time that I’ve checked a few more marbles, I get a different percentage of black ones – first 0%, then 20%, then 33%. While I still don’t have 100% certainty as to how many black marbles are in the bag, I do know that I have some, and the more I picked the more I found. The number of black marbles I found per pick certainly did not remain constant.

If the Appellate Court had been adjudicating, they’d have stopped me after the first pick saying, “You found no black marbles in the bag on your first pick, and since you will always find the same number of black marbles no matter how many you look at, there are  no black marbles in the bag. Game over.” Of course, common sense tells us this is simply not so.

This unfortunate Court decision has taken all the marbles and left New York citizens holding the bag. Now it’s up to us to change New York’s election law and make sure that when races are close, the ballots are counted.

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