The New York City Board of Elections announced Tuesday that it plans to hand count the results of a City Council special election currently underway if no candidate wins a majority in the first round, while they await a response from the State Board of Elections to their request to use tabulation software.
The decision comes after protracted discussions left the city without a green light from the state to hire an outside vendor for the computerized counting system despite sharing the proposed contract over a month ago. As a result, the president of the city’s board and Republican commissioner from Manhattan, Fred Umane, said they opted to do both a hand count and a count using their new software, if more than one tally is required.
“In connection with the election that is currently going on, it is the commissioners’ preference that we would tally the votes with applicable law and that what we would do is count the votes through the regular machines,” he said. But if no candidate receives a majority of the vote during the first tally, a manual count would serve as the final result for the City Council race in District 24 of eastern Queens.
New York City election officials chose a little known vendor to provide software that will count ranked-choice votes, the new method for voting approved in a ballot referendum in 2019 that will be used for a series of special elections this spring and the marquee citywide primary in June when voters will choose candidates for mayor, comptroller, public advocate and most of the City Council.
The back and forth over the vendor selection, and the late timing, highlights ongoing tensions between city and state election officials and raises concerns about the Queens election which many see as a test case for the rollout of the new voting system. The city board’s decision to hand count the votes puts pressure on the state board to approve the proposed vendor.
The NYC BOE plans to use open-source software developed by a non-partisan non-profit group called the Ranked Choice Resource Center, according to emails between the city and state boards and confirmed by the group’s policy director, who shared a copy of their response to the city’s request for proposal and confirmed a micro-purchasing agreement with the city.
Their tool, the Universal Ranked-Choice Voting Tabulator, was developed by Bright Spots, a private/public interest group based in San Francisco, in conjunction with the nonprofit. It’s available for download on Github, a secure site for open-source software, and can be installed on any computer. It is currently used to tabulate results for ranked-choice voting elections in three jurisdictions: Eastpointe, Michigan; and Payson and Vineyard, Utah.
The number of active voters in the 24th City Council District in Queens is about 82,000, more than Eastpointe, Payson, and Vineyard combined.
“I'm very confident that our software will properly run the round-by-round count in New York because we've put a lot of time and energy into making sure it runs properly,” said Chris Hughes, the policy director for Ranked Choice Voting Resource Center. “We've put it through its paces.”
Hughes said the software was secure and reliable as long as it was installed on a computer not connected to the Internet, a standard best practice for election administration. There’s also a cryptographic hashcode attached to it so that when it is downloaded from GitHub a user can confirm it has not been altered, he said. The system was also tested by Pro V&V, an election system testing company also used by the state of New York.
In emails dating from November 2019, through to earlier this month, city and state election officials have gone back and forth over whether the city would need approval from the state to purchase and use new software to tabulate the results. New York State BOE’s Democratic Co-Chair Doug Kellner initiated the discussion soon after city voters approved ranked-choice voting in 2019.
At a December 3rd meeting of state officials, the discussion suggested a split between the bipartisan commissioners over the question of whether they needed to test and approve any new software or any procedural changes associated with how the city board would count votes. Republican State Co-Chair Peter Kosiniski said he thought it was "presumptuous," for the city to enact a new voting system and ask the state to approve it.
“I think as a state agency, we enact laws that are passed by the state legislature, and this was not,” Kosinski said.
Kellner, the Democratic co-chair, argued that the courts have found that municipalities have the right to enact voting systems under the state constitution’s home-rule provisions and that the State BOE was obligated under election law to review and approve their procedures. He also predicted that any court challenge trying to stymie the use of ranked-choice voting would fail.
Ultimately, the State BOE never weighed in on the city's decision to contract with the Ranked Choice Voting Resource Center, saying the city never submitted anything for the formal certification and review process. Yet emails obtained by Gothamist/WNYC show that Ryan sent state officials a copy of the RFP response on December 10th, a week after the monthly meeting.
Indeed, there was a court challenge that sought to halt ranked-choice voting although not on the point raised by Republican state officials. Led by a half dozen Democratic members of the City Council, including several who publicly endorsed Brooklyn Borough President Eric Adams for mayor, the group filed a lawsuit last month against the city BOE and the Campaign Finance Board.
State Supreme Court Justice Carol Edmead ruled against the challenge but in the process raised questions about the city’s readiness for ranked-choice voting. In a December 17th hearing, Edmead pressed the city’s attorney, Steven Kitzinger, about his suggestion the city election officials might count the votes by hand, something the New York City Charter said is allowed.
Here’s an excerpt of the exchange:
MR. KITZINGER: The next point I'd like to make, which is even more important, is that 1057(g) of the city charter authorizes the manual canvass of ballots. So no
software is required --
THE COURT: If it's not required, what the heck are you getting an RFP for then? If you don't need it, why are you doing it? Are you telling me the City is engaged in an unnecessary, useless search for an RFP vendor?
MR. KITZINGER: No, Your Honor.
THE COURT: That so doesn't even hold water.
MR. KITZINGER: Your Honor --
THE COURT: If that is what they really believed, what would they be doing it for?
MR. KITZINGER: Your Honor, by the time June rolls around and there's a special -- there's the June primary election, which is citywide, the voter turnout will be much higher. And for that election, it will be much more efficient to have it mechanically counted.
THE COURT: You know what, Mr. Kitzinger, what you're basically saying -- which I know you don't really mean to say, but your words say, "This election isn't important enough to have to do it by the book. Let us do it the way we can do it, and then, when we have to do it for a really big election, we'll get it right."
MR. KITZINGER: No, Your Honor. Absolutely not. In fact, 1057(g) of the city charter, which is the ranked-choice voting provision, specifically provides at section D-3, "The ballot shall, in plain language, set forth instructions that indicate how to mark the ballot so as to be read by the voting equipment used to tabulate the results or manually as applicable." It was understood that in some cases -- that the ballots may be canvassed manually. And it's not that this is not a, quote/unquote, important election, or as important, the issue here is that it's a smaller contest
THE COURT: No. I'm going to stop you. Stop right there. Mr. Kitzinger, has the BOE proceeded under the -- under the guise of we're just going to do it the way you're saying they could? They haven't. That's not how they've been proceeding. That they could do it that way would be fine. And I don't think -- that's what the words say, but that's not what the actions demonstrate. The actions don't demonstrate that the Board of Elections said we're going down this other road because we can, it's permitted under 1057(g) and under D-3, and that's what we intend to do. That's not what the Board of Elections has said.
MR. KITZINGER: Your Honor, I believe the BOE is preparing -- will be ready and able to do it either way -- in some fashion for the February 2nd election using the electronic scanning and tabulation for the June primary.
THE COURT: You know what, that is -- that such doublespeak, I'm not even going to dwell on it.
Now the city plans to move forward on parallel paths, both conducting the manual tally of votes in the current election if more than one round is needed, while testing the software.
The Ranked Choice Voting Resource Center, a spinoff of FairVote which is the leading national advocacy group for ranked-choice voting, was the only vendor to respond to the city BOE’s request for proposals published in the City Record in November 2020.
Voting rights advocates say that it’s better to have selected a vendor late than not at all.
“I think that the pandemic and miscommunication from the State BOE slowed down the process,” said Susan Lerner, head of Common Cause New York which advocated for the city’s ranked-choice voting referendum and has been leading voter education efforts across the city.
“The major vendors were well aware of the opportunity. ES&S, the current vendor for the voting scanning machines, has been in contact with our BOE since December of 2019, discussing rank choice voting. So, if ES&S were interested, they certainly could have bid,” she said.
As the city embarks on a major change to its election methodology and infrastructure, experts in election technology say the tools are only one part of the equation. Voters also need transparency for how those tools work and how agencies like the city and state boards make their decisions.
“I don’t really view this as a technology issue,” said John Sebes, the chief technology officer and co-founder of Open Source Election Technology Institute, which specializes in building election technology and advising people on election policy. He noted when agencies make these kinds of changes it’s important for voters to understand what is happening each step of the way.
To blame this on the technology, he said, “That’s a distraction from the real issue of transparency and trust.”
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