DOJ vs. New York Lawsuit - A Synopsis

Does the HAVA tiger have any teeth?

On March 1, 2006 the US Department of Justice (DOJ) sued New York State for non-compliance with the Help America Vote Act. New York has famously made little progress on HAVA plans, often referred to as “dead last in the nation”. In truth, there are other states not much further along. But due to New York’s well deserved reputation, the DOJ lawsuit was seen as something of a test case as to how far the Federal government was prepared to go to enforce HAVA.

The key question was - would the DOJ enforce full replacement of lever machines by September 2006? Any attempt to get a completely new voting system up and running in the remaining few months would certainly result in electoral chaos and an Election Day train wreck. But two letters from the DOJ to Connecticut, another lever machine state (one here, another here), and a published opinion by the Election Advisory Committee (EAC) signaled that the Feds interpreted HAVA to mean no lever machines, no ifs, ands, or buts. Concern that the DOJ had strict enforcement in mind was reinforced when it quickly filed a motion for a preliminary injunction requesting the Court take immediate action.

Intervenors and judges and lawyers, oh my…

In an attempt to prevent an electoral disaster, New Yorkers for Verified Voting, the League of Women Voters of NYS, longtime voting activist Larry Rockefeller, Lionel Logan of the Syracuse Onondaga County Branch of the NAACP, and two county Election Commissioners filed a Motion to Intervene opposing the lawsuit. Lowell Finley of VoterAction.org and several top law firms provided legal expertise. As we noted at the time, “The lawsuit could result in New York being forced into hasty procurement of voting systems which are not secure, poorly tested, and which fail to reliably and accurately record and count votes. Using untested voting systems acquired in haste is a recipe for disaster.”

But things were changing fast. At the next hearing on March 13, the NYS Board of Elections floated the idea of the interim “Plan B” solution, discussed in my last post, and was claiming, just as we were, that any attempt to enforce HAVA this year would harm “its ability to perform its fundamental responsibility to ensure smooth and orderly elections this Fall.” At the hearing, US District Court Judge Gary Sharpe ruled against the Intervenors, shutting us out from further participation in the lawsuit.

But, in a key moment, Judge Sharpe pressed the DOJ attorney to concede that they did not seek to force complete HAVA compliance by September 2006. The attorney responded that it was clear there were constraints given the brief time remaining, and that they did not intend to enforce full compliance this year. And with that concession, it was a whole new ballgame! New York State, the DOJ, and we rebuffed Intervenors were all in agreement - there was no way New York could change voting systems in 2006.

On April 1o, New York State formally submitted its “Plan B” solution to the Court. Plan B calls for a small number of disabled accessible ballot markers to be available in each county in 2006. The submission proposed delaying full replacement of lever machines until September 2007 (details here). After some back and forth on the details of the plan, the DOJ agreed to New York’s proposal, indicating that they weren’t really happy about it but it seemed to be all that could be realistically achieved. And on June 2, 2006 the Court signed a remedial order, effectively bringing the case to a close.

Your tax dollars at work

So what have we taxpayers received for the cost of the DOJ vs. New York lawsuit? For starters, we are going to implement a plan which nobody seems to actually want! Since Plan B only provides a very limited number of accessible ballot markers in a small number of locations, the disabled community doesn’t like it. Since local election commissioners must spend time, energy and HAVA funds implementing Plan B this year when they’re preparing for an important election and have bigger equipment decisions looming, they don’t like it. Since they don’t consider it HAVA compliant, the DOJ doesn’t like it. And for the same reasons as county commissioners, State Board of Elections would just as soon take a pass and focus on 2007. Finally, verified voting advocates don’t like it much either because it’s a distraction from the real struggle – will New York vote on paper ballots or DREs?

So the net result of the DOJ lawsuit is a solution that nobody wants and nobody likes, but that we’re going to spend money, time and effort to do anyway. Citizens rejoice, and marvel at your government at work!

Like HAVA itself, we have a complex and expensive solution looking for a problem. States in a mad rush to adopt expensive, unproven voting systems might ask this: if New York State, -dead last in the nation-, gets a pass, does the HAVA tiger have any teeth?