DOJ Attempt to Screw Up NY’s Presidential Vote Fails

Yesterday as I was driving back from a breakfast meeting I heard a discussion on Air America about the courts’ ruling in United States of America v. New York State Board of Elections, et al. They seemed a bit confused and got the description of the problem wrong and the upshot of the decision wrong, so I thought I would explain. I have been following this case closely, have participated in some of the strategy sessions and was invited to write one of the Amici briefs (had to turn it down b/c I was swamped with client work–bummer) so I have a lot of backstory on this one.

The media’s confusion seems to stem from two main problems:

1) They mistakenly believe that there is some problem with NYS’s "old technology" toggle voting machines. WRONG

2) They understandably think NYS lost the case, b/c the judge’s order said that he was granting DOJ’s motion.  That, too, is wrong, but the Order is misleading unless you read for content.

The backstory:

After the 2000 recount debacle in Florida, Congress rushed to pass a really poorly thought out piece of legislation misnamed the Help America to Vote Act. HAVA contained provisions for funding for states to buy new voting machines and mandated that they comply with the Americans with Disabilities Act (the only provisions I applaud). However, HAVA also contained all kinds of unrealistic provisions. For example, it created the Election Assistance Commission, which is actually the antonym of what its name suggests. (LHP digression here–DiFi is proposing batshit crazy stupid legislation to make the EAC–currently a temporary agency–into a PERMANENT voting obstruction entity and giving it power over all elections, further eroding states’ rights. Dianne Feinstein, I’m talking to YOU. Put down the legislation, back away slowly and keep your hands where I can see ‘em.)

OK, back on topic. The EAC was supposed to create standards, including ADA standards, for the new systems that the states were going to be able to purchase with money appropriated by Congress under HAVA. It was also going to certify testing labs for the computerized systems it assumed states wanted to rush out to buy. What a windfall for Diebold!

The problem is that EAC didn’t do a very good job of certifying the labs or notifying states when it decertified labs and it fell WAY behind setting up these standards. As a result, NYS which quite rationally waited for the standards before rushing out to buy just any old untested equipment ran afoul of the SPENDING deadline in HAVA.

Now HAVA has lots of provisions, really important provisions requiring RELIABLE and ACCURATE voting systems. Now I ask you, if you knew that for reasons outside your control that you could not meet the reliability and accuracy provisions in time for a completely arbitrary and nonsensical "spend by" deadline and you had to violate one or the other, which would you blow off? Especially if you actually cared about fair and legitimate elections?

Enter the incredibly politicized voting rights section of DOJ. They brought suit against the State of NY to force us to just go out there and buy any machines. Both DOJ and EAC took the position that NY State’s completely reliable and totally robust toggle machines did not comply with HAVA. Considering that some of the later models of the toggle machines do indeed produce a machine generated paper trail, I find EAC’s position ludicrous.

I heard a guy on Air America complaining about how NY’s toggle machines were so old and creaky. You know why? These machines are so robust and virtually indestructible that some of them have been in continuous and reliable service for 30 years. They are mechanical and do not require electricity to operate. They are easy to fix if vandalized or broken–and they are reliable.

When NY State tried to hew to its own (higher) standards for reliability, transparency and verification, DOJ made a motion requesting that the court take away NY State’s right to chose its own machines and appoint a special master to pick our machines for us and put those machines into use for the 2008 Presidential election!  Such a move would have thrown NY State’s election and its very many Electoral College votes into a total chaotic meltdown.

Well good news pups, even though Judge Sharpe said in his opinion that he was GRANTING DOJ’s motion, in fact the specifics of his order conform (almost exactly) with the solution proposed by NYS, to wit, we are going to put an ADA compliant ballot marking device in every polling place for the 2008 election. They won’t be tested or certified (sigh) but many county elections officials have chosen paper ballot marking devices to be on the safer side.

We don’t have to have a new voting system in place until the 2009 elections (a very off year). Whew! That was a close one.

BTW, in case he’s a reader or someone he knows is a reader: Thank you Judge Sharpe!

photo by ShutterCat7

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