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Update on the Department of Justice vs. New York State lawsuit

On Tuesday, 3/14/06 the Department of Justice (DOJ), New York State, New Yorkers for Verified Voting (NYVV), the League of Women Voters of New York State and the individual citizens who are requesting Intervenor status will have a first opportunity to appear together in court. The hearing will take place on 3/14/06 at 11 AM in the US District Court, Northern District of New York, in Albany NY.

On March 7, the DOJ filed for a preliminary injunction, which if granted would call for New York to quickly comply with Sections 301 and 303(a) of HAVA, and ordering the state to promptly present a plan to the Court on how they will bring the State of New York into compliance with these Sections [copy of the brief].

The New York State Board of Elections appears to be considering the so-called "Plan B" option as a solution that will be acceptable to the DOJ and the Court. Last week the staff of the State Board of Elections distributed a memo to county commissioners asking for their comments on the Plan B solution.

At this point it is unknown if the DOJ, or disability advocates, who are actively supporting the DOJ’s lawsuit against the New York, will approve of Plan B, or push for another solution. In its original brief the DOJ called for a full implementation of HAVA, presumably including replacement of all lever machines by September 2006.

The citizens and civic groups who have requested intervenor status are maintaining that the DOJ action to force New York to overhaul our voting systems before the September 2006 primary risks Election Day chaos. An effective and secure implementation requires substantial time for certification, training and installation which is not possible under the current timeframes. Also, the lawsuit could result in New York being forced into hasty purchase 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.

"New federal standards for voting systems are still not in effect and will not be until after the 2006 elections." said Bo Lipari, Executive Director of New Yorkers for Verified Voting. "It is ironic that the DOJ is pushing New York State to comply with a law that the Federal government itself has not yet complied with."

NYVV maintains that the delay in implementing HAVA is due at least in part to the federal government, which also failed to meet HAVA deadlines. HAVA required the Election Assistance Commission (EAC) to develop guidance on voting systems standards by November 2004 to assist the States in upgrading election equipment to comply with the 2006 deadline. But, the appointment of EAC members was delayed for more than nine months. Also, only a small fraction of the funds authorized under HAVA for the EAC to carry out its duties were appropriated.

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