It seemed inconceivable that the New York State Supreme Court would overrule the decision of the Board of Elections and allow LibertyVote’s DRE to be purchased by New York counties. But on Monday, 2/4/8, that is exactly what happened, astonishing legal experts and frustrating advocates who thought we’d finally prevailed over the DRE threat. The flawed ruling now sets yet another legal precedent that the right of voting machine vendors to turn a profit supersedes that of voters to demand that the equipment we spend our tax dollars on be up to the job.

It’s unusual in New York State for a Court to rule against an agency legally responsible for a decision, as the Board of Elections is for the states voting machines. But yesterday the Court substituted its own evaluation of the suitability of the LibertyVote DRE for use as a ballot marking device for that of experienced Commissioner Doug Kellner (D) and several independent evaluations. The Court’s ruling hinges on two arguments – that the grocery store style VVPAT is a legal New York ballot, and that LibertyVote submitted changes to the machine in a timely fashion. Unfortunately, neither of these is germane to the key issue – does the DRE meet the requirements of State law and allow voters with disabilities to independently verify their ballot? Clearly it does not. But the Court declined to even address this essential concern.

Reading the decision is astonishing not for what it says, but for what it doesn’t say. Nowhere does the Court address the arguments made in the Kellner affidavit that the LibertyVote mechanism for independent verification of the paper printout is unusable. Nowhere does the Court seem to understand the difference between a ballot marking device and a voting machine, one more reason why someone with no expertise should not make crucial decisions about this issue. Using circular logic, the Court concedes that a “ballot marking device” is not defined in Election Law, but then makes the leap that “Clearly, a voting machine or voting system that meets the requirements of 7-202 will constitute an appropriate ‘ballot marking device’”. The Court wants it both ways, saying that a ballot marking device is not defined in the statute, then saying that it is.

But the Court never seems to understand that any “ballot” produced by a ballot marking device must be able to be verified by a voter who is blind, or in a wheelchair. This is the real shame in this decision. Consideration for LibertyVote to get a return on their investment looms large in this flawed judgment, but consideration for voters is nowhere to be found. How ironic that a Court orders that the LibertyVote DRE, unusable by voters with disabilities, may be used as a ballot marking device. It seems that in this case, truly, justice is blind.