Department of Justice Agrees to New York Plan to Delay HAVA Implementation

On Friday, 4/28/06, The Department of Justice (DOJ) accepted New York State’s plan which postpones HAVA compliance until 2007. Last week the State of New York submitted a plan to the Court in the lawsuit filed against it by the DOJ. New York’s plan calls for placing one or more accessible ballot marking or vote-by-phone systems in each of New York’s 62 counties in 2006, and defer replacing current lever machines until 2007.

In its response the DOJ acknowledged, as both New York State and a group of citizens who sought to intervene in the lawsuit contended, that any attempt to replace existing voting equipment this year would result in an election disaster. In its submission the DOJ stated:"...the United States is mindful at this late date of the potential for disruption of the federal election process in New York if plans for full HAVA compliance are implemented in too hasty a manner..."

The DOJ also stated, as it had in earlier letters to Connecticut, that it does not consider lever machines to be acceptable technology, and that HAVA required that they be replaced. The DOJ also accepted New York's plan for a partial implementation of HAVA required statewide voter databases, with full compliance in 2007.

Extracts from the DOJ response on the voting machine portion of the suit are below.

Bo Lipari
New Yorkers for Verified Voting
www.nyvv.org

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Extracts from the DOJ response to New York State’s HAVA implementation plan

DOJ Conclusion:
"Thus, the United States submits that it does not oppose the Court approving the State’s remedial plan for compliance with Sections 301 and 303(a) of HAVA, as supplemented by the filing concerning planned jurisdiction actions to provide accessible voting systems..."

Acknowledgement of potential for disruption of the election:
"Specifically with regard to HAVA-compliant voting systems, the State’s inability at this point to propose greater HAVA compliance than is found in its proposal is indeed regrettable and in the end does a disservice to the voters whom HAVA was intended to benefit. However, the United States is mindful at this late date of the potential for disruption of the federal election process in New York if plans for full HAVA compliance are implemented in too hasty a manner, and the United States’ comments here must be viewed in this regard. There should be no doubt that we seek full compliance with federal law as soon as is practicable."
…

"However, and with great reluctance, the United States recognizes that the State’s inaction and delay have created the potential for electoral disarray if the State is required to attempt replacement of all lever machines and achieve complete voting systems accessibility by the fall, and we do not seek to require such actions where such disarray is, as here, a likely result.

We thus will not oppose, given the particulars of this situation, as detailed below, the State’s plan for limited HAVA voting systems compliance for the fall federal elections, in light of all assertions by the State that full compliance is impossible."
…

“While the jurisdiction-by-jurisdiction plans for interim HAVA compliance, as indicated above, fall far short of HAVA’s requirements, we acknowledge that they will provide some measure of accessibility for individuals with disabilities in the upcoming 2006 federal elections otherwise not available.11 While the plans are thus, frankly, for the most part, very poor, they are better than nothing, and the United States is not in a position to state with assurance that the State of New York and its counties are capable of more.”

Non-compliance of New York Plan and non-compliance of lever machines:
"The State’s interim voting systems plan clearly does not achieve full compliance with HAVA.

First, the State’s lever machines do not comply with the mandates of Section 301 of HAVA, at the very least insofar as they do not have the ability to produce a permanent paper record with a manual audit capacity, as required by Section 301(a)(2), and they are not accessible to individuals with disabilities, as required by Section 301(a)(3).4 Thus, pursuant to HAVA, these machines should be replaced by the 2006 fall elections.

Second, placement of accessible voting systems in only a certain number of vote centers distributed geographically or otherwise throughout a jurisdiction, as proposed by the State, fails to comply with unequivocal HAVA mandates that each polling place have an accessible voting system."

Full implementation required by 2007:
"The State’s proposed plan provides in the long-term for full compliance with HAVA’s voting systems requirements. All lever voting systems in the State will be replaced with HAVA compliant voting systems by the time of the fall 2007 State elections, and also by that time, each polling place in the State will have at least one voting system meeting HAVA’s requirements for accessibility to individuals with disabilities.

The United States expects that, if the State follows through with full implementation of this long term-strategy, New York should be in full compliance with Section 301 of HAVA no later than the fall of 2007. The record to date makes clear, however, that continuing court supervision of the State’s efforts will be necessary to assure that even that deadline is met. In that regard, the State’s long-term voting systems compliance plan contains no specific schedule for ultimate HAVA compliance. The Court should order the SBOE to develop and submit to the Court by July 15, 2006, a detailed schedule for long term voting systems compliance."

Required reports and record keeping:
"In order to do so, we believe it necessary and appropriate for the Court to order the SBOE to report periodically to the Court and to the United States in writing or through personal report from SBOE staff, concerning progress in implementing the terms of the remedial plan. In addition, the Court should order the SBOE to retain any and all records concerning its compliance efforts until the plan is carried out in full and, after that, for a period of 2 years, as required by 42 U.S.C. 1973gg-6(i), or for a period of 22 months, as required by 42 U.S.C. 1974, as appropriate.”

Summary of what is expected of New York (Voting Machine Requirements):
"Thus, the United States submits that it does not oppose the Court approving the State’s remedial plan for compliance with Sections 301 and 303(a) of HAVA, as supplemented by the filing concerning planned jurisdiction actions to provide accessible voting systems, subject to the following:

A. Voting Systems

1) Confirmation by the SBOE, with regard to voting systems accessible to individuals with disabilities that will be deployed for the fall federal elections pursuant to the State’s interim plan, that the overriding principles are deployment of an accessible HAVA compliant voting system(s) in each jurisdiction that will provide the opportunity to vote independently and privately to all voters with disabilities no matter their residence location in the jurisdiction;

2) No later than June 15, 2006, the SBOE must file with the Court, for each jurisdiction, the specific polling locations at which accessible voting systems will be deployed as part of the SBOE’s interim voting systems plan and specific information concerning the geographical population of each jurisdiction served by each polling location;

3) No later than July 15, 2006, the SBOE must file with the Court a proposed detailed schedule for implementation of the State’s long term proposal for voting systems;

4) The SBOE shall immediately file with the Court the current detailed plan for compliance with the State’s proposed HAVA compliance plan submitted to the SBOE by New York City;

5) For those jurisdictions which, for whatever reason, do not timely comply with the State’s plan for interim HAVA voting systems compliance, the State will make a choice for such jurisdiction (or jurisdictions), as appropriate, as to the number and specific location of accessible voting systems to be deployed and the type of accessible voting system, consistent with the timeline set forth in the SBOE’s plan;"

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