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?

New York State’s HAVA Plan - June 2006

New York to vote on lever machines in 2006, but complacency is not an option

There’s a good deal of well deserved confusion about the situation in New York State regarding HAVA implementation. The question on concerned citizens’ minds is: will New York be voting on new systems in the 2006 elections? So let’s clear up what’s going on in the Empire State as of June 2006.

For starters, here are four important facts:

1) New York will NOT be replacing lever machines in 2006.
2) In 2006, a small number of ballot marking devices will be provided at a central location in each county for disabled voters.
3) Lever machines are scheduled to be replaced by the September 2007 elections.
4) Purchasing decisions for 2007 voting systems will be made over the next few months in 2006.

It’s well known that New York got a very late start on making plans for HAVA. By the time the US Department of Justice (DOJ) sued NY for HAVA non-compliance on March 1, 2006, it had become clear to those who understood the size and complexity of the task that any attempt to replace NY’s lever machines by September would result in an electoral train wreck. I’ll talk more about the Department of Justice lawsuit in my next post, for now skipping ahead to the end – the DOJ, the State of New York and the US District Court have agreed that it is not possible to replace lever machines this year, and have agreed instead to an interim option, colloquially referred to as “Plan B”.

Plan B for 2006 – 12 Dozen Ballot Markers for New York State

The so called Plan B option, to be implemented for the 2006 elections, calls for a small number of accessible ballot marking devices for use by disabled voters to be centrally located in each of New York’s 62 counties. Each county must purchase the devices from their share of New York’s HAVA funds. An important point - the Plan B devices will only be used to mark ballots, not count votes. How the county counts the ballots is up to individual counties. Since only ballot marking devices are authorized for Plan B use, and no DREs or ballot scanners, NY’s 2006 solution momentarily avoids the contentious issues regarding the relative merits of paper ballot based voting systems vs. Electronic Touch Screen machines.

For Plan B, most counties have elected to have only one ballot marker available on Election Day (the total number and model of ballot marker selected by each county can be found here). Given that only 144 ballot markers will be purchased for the entire state, New York State is doing as little as possible this year, and has received the Department of Justice’s agreement that this, for now, is okay.

But for New York citizens, complacency is not an option, because the agreement between NY and the DOJ doesn’t stop with 2006. While the settlement calls for New York to keep lever machines in place this year, the state is still obliged to replace them with new voting systems by the September 2007 election. And in a somewhat confusing nomenclature, the implementation plan for replacement of lever machines in 2007, which will happen after Plan B, is being referred to as “Plan A”!

Plan A for 2007 – Deciding the Future of Voting in New York

The Department of Justice made it clear that it wants New York to have new voting systems in place by 2007. Plan A describes the huge and complex task of certifying, selecting, and ordering new voting systems, followed by the acceptance testing, installation, training of poll workers and voters that must take place in each county before first use in September 2007. The State Board of Elections (SBOE) must provide its Plan A schedule on August 15, 2006. As stated in the court order, “no later than August 15, 2006 the SBOE must file with the Court a proposed detailed schedule for implementation of its long term proposal for replacing all lever machines…”.

For New York State advocates who have been resisting the rush to Electronic Touch Screen Voting not much has changed. We have certainly not bought much time, a few months at best. County election officials are even now considering voting systems, talking to vendors, and making Plan A purchasing decisions. It will only be a few months before final decisions are made and contracts are signed. This Summer and early Fall will be when the future of voting in New York State is decided.

This is no time to be complacent. New York needs your help. You can get started by helping out New Yorkers for Verified Voting with our Accountability Campaign.

Welcome to Bo Lipari's Weblog

Welcome to my new Weblog. I will be posting regularly here to talk about the struggle for verifiable voting in New York State and the rest of United States.

Stay tuned for more.

Bo Lipari