Uh, oh, “virus” infected NY-23 computerized voting machines

By John Burke | Related entries in News


A local newspaper in upstate New York’s 23rd Congressional District, scene of the hard-fought and nationally prominent special election (won — so far anyway — by the Democrat after his Conservative opponent conceded), reports that a computer virus may have “tainted’ the results:  

GOUVERNEUR, NY – The computerized voting machines used by many voters in the 23rd district had a computer virus – tainting the results, not just from those machines known to have been infected, but casting doubt on the accuracy of counts retrieved from any of the machines.

So, after three candidates spent a gazillion dollars tearing each other to pieces and their battle was played out on the national stage by every pundit in the land, the computers may have eaten the votes.  

I hate it when that happens.

Hoffman conceded to Democrat Bill Owens on election night when the reported results had him trailing by more than 5,000 votes, and Owens was quickly sworn in as a member of the House of Representives. Recently, though, Hoffman “unconceded” (odd as that may be) when it turned out that he was behind by only about 3,000 votes with the absentee ballots outstanding.

As of earlier today, Politico declared Hoffman out of the running again, as the counted results showed he could not possibly win. But who knows now what lies inside the “infected” machines?

This should serve as a warning to candidates in close elections: never, ever concede until the votes are actually counted!

Cross-posted from The Purple Center


This entry was posted on Thursday, November 19th, 2009 and is filed under News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

8 Responses to “Uh, oh, “virus” infected NY-23 computerized voting machines”

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  2. Chris Says:

    More like it should serve as a warning to not trust voting machines with no valid paper trail.

  3. rachel Says:

    I agree with Chris, except we should not trust voting machines at all. For something this basic–this important–we need a technology that never fails.

    Ladies and Gentlemen, I give you the humble #2 pencil and a printed ballot paper.

  4. Simon Says:

    I would have thought that “Hoffman [was] out of the running” as soon as the House seated Owens? At least, for practical purposes, I mean, because even if Hoffman “won,” no court could remove Owen and install Hoffman.

    “[T]he political question doctrine restrains courts from reviewing an exercise of … judgment by the coordinate political branch to which authority to make that judgment has been ‘constitutional[ly] commit[ted].’” Goldwater v. Carter, 444 U.S. 996, 1006 (1979) (Brennan, J., dissenting) (alteration in original) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). Thus, courts will deem an issue “nonjusticiable—i.e., [that it] involves a political question—where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it….” Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting Baker, supra, at 217))

    Article 1 § 5 seems to commit the instant issue to Congress: “Each House shall be the judge of the elections, returns and qualifications of its own members.” On its face, that clause gives Congress domain over three classes of issues. And we know from Powell v. McCormack that one of those three is a “textually demonstrable commitment” to Congress: to judge members’ compliance with the Constitutionally-required qualifications. 395 U.S. 486, 548 (1969). So for one, so for all. By parity of reasoning, since section five commits questions about the constitutionally-enumerated qualifications of members of Congress to Congress, it must also commit questions of members’ elections and returns to Congress. When the House seated Owens, it necessarily exercised its power to judge the election, and since the courts are out of the picture, Hoffman would have to persuade the Democratic leadership of the House to reverse course.

    Presumably, some principle must limit this power. But I don’t know what it is, and I don’t know how 2 U.S.C. § 382′s contest process, which appears to assume the context of a regular election, applies in the case of a special election where the putative winner has already been seated.

  5. John Burke Says:

    Simon — You’re probably right about the law, the courts and Congress seating its own members. However, as embarassing as it would be, it’s hard to see how the House could not seat Hoffman if the count came out in hus favor and the state certified his election.

    Fortunately for everyone, Hoffman does indeed appear to be a loser for sure.

    What’s interesting to me about this computer virus issue is this: If Hoffman had not conceded and had sent lawyers and watchers into the official recanvas, his people would have found out about the virus in the course of the recanvas, while presumably Owens was not sworn in. And the virus issue might then have led to battles over how to resolve it with who knows what outcome.

    Candidates should never concede when results are incomplete and the votes still outstanding surpass the election night margin as reported by the press consortium. I mean, really, who cares except TV reporters whether someone concedes? And you can alwyas go out at 2am and say something like, it appears my opponent has won and if so I wish him well, but we’re going to wait to see the full results before making it official.

  6. Nick Benjamin Says:

    Simon’s right.

    In disputed elections Congress gets to choose. Usually they defer to state authorities, but in this case I doubt they will. Unless the virus specifically targeted Hoffman it’s unlikely it affected the election outcome because Owens votes would suffer the same fate as Hoffman votes. And it’s unlikely the state would certify Hoffman without crystal clear evidence he actually got more votes on election day. — Secretary of State Lorraine A. Cortés-Vázquez is a Democrat.

    In general it shows that pure electronic voting systems are not a great idea. Detroit uses optical scanners. They can electronically count the votes, but if there’s a dispute a hand recount is still possible. They’re also nice because you only need one per polling place, and even if it’s not working people can still fill out their ballots.

  7. Jim S Says:

    Does anyone else realize how inaccurate that article is in many aspects? It reads like it never even occurred to them to fact check it with technology experts or do any other form of “due diligence”. For one thing, a device with USB ports is not automatically wide open to anyone who comes along. The port provides a standard interface but these ports can be secured so that only the authorized personnel can actually use them. Whenever I hear someone say there is a virus in the system I want to know which one. If they can’t tell me then I want to know how they know it really exists and what effect it could have. The fact that they put the words VIRUS and VOTING MACHINES in all caps makes me wonder about it, too. Maybe they’re right about something being wrong but their approach smells a little odd.

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