Electronic voting machines being deployed for the first time this year across New York City and the rest of the state contain a flaw that could lead to thousands of votes being thrown out, according to a lawsuit that advocacy groups will file Monday.
The problem, according to the legal complaint, revolves around voters who accidentally pick too many candidates for a particular race — an error known as “overvoting,” which invalidates the incorrect part of their ballot.
When a voter submits such a ballot, the new machines do not automatically return it to be corrected and recast. Instead, the machines that scan the new SAT-style ballots are programmed to start beeping and to offer a choice on their digital touch-screens: a green button for voters to confirm their choices and cast their ballot, or a red button to scrap their votes and start over.
Lawrence D. Norden, senior counsel for the Brennan Center for Justice at the New York University School of Law, which is representing the New York State conference of the N.A.A.C.P., the Working Families Party and other groups in the lawsuit, said that the setup was poorly worded and confusing, and that the design of the new machines could prompt thousands of voters to press the green button accidentally, casting parts of their ballots into oblivion.
The lawsuit, filed against the State Board of Elections, says voters who are minorities or non-native English speakers would lose their votes in disproportionate numbers.
“They have to make a fast decision,” Mr. Norden said. “There are people behind them, and they tend to press ‘cast,’ especially because there’s nothing there that says, ‘Your vote will not count.’ ”
The machines tell people they have “overvoted,” but do not explain what, exactly, overvoting is, or its consequences, Mr. Norden said. And many voters are just more likely to hit a button with a green check mark than a red X — even if it has the effect of quashing part of their vote, he added.
In 2000, thousands of voters in Florida made a similar mistake by accidentally choosing two candidates for president, invalidating their selections and helping plunge the razor-thin contest into a chaotic stalemate for weeks.
The new scanning machines offer improvements like the creation of paper records of votes, but Mr. Norden said the way they were programmed to handle mistaken votes put New York at risk of sowing confusion. “This completely ignores what happened in Florida in 2000,” he said.
The old lever-operated machines prevented overvoting by locking themselves up if a voter flipped too many switches for various candidates. But Douglas Kellner, co-chairman of the New York State Board of Elections, called the conflict “a very minor issue” and said the new voting machines had taken a trial run in some upstate counties in elections last year with no major problems.
Rather than reprogram thousands of voting machines a few months before the primaries in September, Mr. Kellner said the board had agreed to assess how the system performed after the elections in November, in which New Yorkers will select a governor and vote on both Senate seats, among other races.
“We have a completely new system,” Mr. Kellner said. “That’s why the consensus is, don’t do an emergency fix of this one little minor point right now.”
A spokesman for the elections board called the new machines “compliant and legally sufficient” and said that tweaking how they handle improperly completed ballots would take months of testing and layers of approval to recertify the changes.
The new machines, which replace the lever-operated antiques many election districts in New York had used for decades, sprang from the Help America Vote Act of 2002, which aimed to update voting machines to prevent another election marred by thousands of rejected ballots. Voters in New York will now fill out ovals on a paper ballot, feed the ballot into a scanning machine and drop it into a locked box.
Public-interest groups began raising concerns about the potential for invalidated ballots this winter, citing a study in June 2009 by the Florida Fair Elections Coalition that attributed high numbers of overvoting in Florida’s 2008 elections to flaws in some electronic voting systems.
A letter sent in February to the New York State Board of Elections from several groups, including the Brennan Center, said that as many as 40,000 votes could be lost in a heavy election year.
Mr. Kellner disputed that estimate, saying the number was “made up out of thin air.”
The lawsuit says the current setup violates the Voting Rights Act and asks that New York not use the new machines until more safeguards are put in place.
The complaint, which was given to The New York Times by the Brennan Center, says that Wisconsin developed its system to “return a ballot to the voter immediately” if the scanning machine noted an overvote.
Connecticut does the same thing, said its secretary of state, Susan Bysiewicz, adding that it gives voters a chance to fix the ballot or to send it through, errors and all.
“This can happen a lot,” Ms. Bysiewicz said. “It’s much better if the voter has the opportunity to ask a question of a poll worker and be given the opportunity to vote a fresh ballot.”
