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NY Judge Threatens To Jail NY Board of Elections (Was He Just Kidding?)

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Originally blogged at We Do Not Consent: NY Judge Threatens To Jail NY Board of Elections (Was He Just Kidding?) By Dave Berman 12/20/07 A quick search of Google News this morning just after 9am Humboldt Standard Time turned up this brief Newsday article posted just moments before (NOTE: the article currently at this link is an updated and much longer version): Judge says NY must comply with voting machine law by Jan. 4 12:03 PM EST, December 20, 2007 ALBANY, N.Y. - A federal judge is giving New York until Jan. 4 to comply with a federal election law to make voting more accurate and easier. U.S. District Court Judge Gary Sharpe spent much of a court hearing Thursday expressing his disgust with the state for its failure to meet the requirements of the Help America Vote Act while every other state took action. He reminded officials several times he could jail members of the state Board of Elections for contempt of court. If the state doesn't act by Jan. 4, Sharpe says he will consider establishing a "special master" _ perhaps Gov. Eliot Spitzer _ to force the state into compliance with the law, which was enacted after the contested 2000 presidential election.
That seems pretty heavy duty. Will members of the NY Board of Elections really be jailed? According to Election Defense Alliance attorney Jonathan Simon, who was in the Albany courtroom this morning, "the threat to jail the Board members was a rhetorical flourish, not a literal threat. It was more of the nature of, look, here is what my powers are, here is the scope of my options." Simon tells me the judge was clearly frustrated and angry and rejected the role of having to become involved in choosing voting systems. "The Judge wants a definitive plan as opposed to competing plans from the Republican and Democratic parties, which essentially become delay tactics. From the Judge's standpoint it is about getting it done and getting it done now. It is not about whether HAVA is good or bad or what other states are doing." Was the hard work of the NY amici all for naught? It certainly doesn't appear to have influenced the Judge in our favor. But he didn't complete ignore us either. He took the time to slowly read the names of supporting organizations, "dealing with them in a formally respectful way," said Simon. Then adding, "but with a hint of derision." Simon described "near-stroke" laughter from the Judge, "mocking California or Pennsylvania for trying to tell New York how it should run elections. What struck me," continued Simon, "was what he didn't get (and he had a lot on the ball) but what he didn't get was why everyone was weighing in, choosing not to acknowledge the national repercussions and why this transcended the timing or particulars of the state. To the judge it was cut and dry. He wants to see HAVA compliance and it appears and he was aligned with the DOJ argument." Politics on the Hudson, a blog written by reporters and editors from Westchester, Rockland and Putnam counties, as well as Albany and Washington, reports that Judge Sharpe "berated state elections officials" and "said the situation makes him 'embarrassed' to be a New Yorker." The PotH article concludes:
In a speech tinged with hyperbole, Sharpe asked if he needed to do what the late President Dwight D. Eisenhower did in 1957 - call out the National Guard to force compliance with a federal court order. In that case, the military was sent to Little Rock, Ark., to enforce school desegregation. Black students were being blocked from entering a high school there. "We didn't let Little Rock, Ark., thumb its nose at the country, and we're not going to let New York thumb its nose at the country," he said.

So what about the copious evidence of machine failure and NY's high standards for certifying voting systems? Forgive me, but, Simon says, "The Judge doesn't care that no systems jibe with state requirements. Federal law trumps state. Federal law is preemptive. The judge is prioritizing meeting federal requirements, no matter how poorly conceived, rather than trying to satisfy state certification requirements." As for what to expect next, Simon reports the Judge made a potential concession and may allow rolling compliance to occur through 2008, provided a firm plan for full compliance is in place for after that. Simon added: "NY has to come back by January 4 with a definitive plan. Since the Democrats' plan is the plan that has the most definitive time table, there was a strong urging that the plan should be modeled after the Democrats' "Zalen" plan." Aside from what sounds like the spectacle of it all, this outcome can't really come as too much of a surprise. But it isn't the end for the work of the NY amici. The combined effort in detailing and forecasting the logistics of hand-counting paper ballots across New York will serve the election integrity movement just as pivotal reports in the past have become oft-quoted sources (i.e. Hursti Hacks, Bowen's Top To Bottom Review, etc.). This is also a national story with a big local hook here in Humboldt. Continuing the outreach I wrote about last night, this morning I left a message for the Journal's Hank Sims (and a second one at the end of the day) and another for James Faulk at the Times-Standard. A call to T-S editor Rich Sommerville then confirmed my hunch that Faulk wasn't the reporter I should be looking for. He referred me to Kimberly Wear, who I spoke with at the end of the day, only to learn that the VCC media advisory and press release had never crossed her desk. She asked that I e-mail same and we'll see about coverage in the next few days. While nothing in the above paragraph should be construed as awesome progress, you may say what you will about this newscast (.mp3) this afternoon on KGOE. My next call after the newspapers was Tom Sebourn, who recorded me detailing the Newsday article, the amicus brief which creates the local angle here, and finally the plug for Friday's Peter B. Collins show on which both Humboldt Registrar of Voters Carolyn Crnich and I will be appearing between 5-6pm HST. Rather than paraphrasing what I called in to tell Sebourn, he actually broadcast a lot more of the news segment in my voice and words than I would have imagined. Score. At noon, new Voter Confidence Committee webmaster(!) Paula Long and I met with some of the members of the Redwood ACLU. Their prepared agenda included discussing support for the VCC hand-count proposal. However, certain key people were not present. While those of us in the room did discuss at length much of what I hoped would be covered, ultimately revising their draft statement was tabled until their January 17 meeting. At the end of the day I also called the Registrar, leaving her the second message in as many days offering to touch base with her prior to the Peter B. show in order to familiarize her with the updates to the hand-count forecast tool (.xls) created in front of her eyes and now used across the country. And so it grows. I have received adapted or spin-off versions of the spreadsheet from several people in recent weeks, most recently today from Brian Rothenberger who has done a tremendously detailed analysis of hand-count needs in Monterey County, CA. If he is making it publicly available I'll post a link here soon. UPDATE/CORRECTION 12/25 4:25pm: Sincere apologies to Brian Rothenberger. His spreadsheet was developed completely independently of mine. He was not even aware of my work at the time he developed his model, which he has not made available online at this time. While our two spreadsheets are entirely different in approach, layout, and various other aspects, what they have in common with each other and several additional forecast spreadsheets circulating in the election integrity movement is the tactic of creating quantifiable projections for hand-counting paper ballots. Should Registrars everywhere be able to do this on their own? Of course. But have they done the work? It does not appear so, particularly here in Humboldt, which is why the VCC is intent on ultimately presenting forecasts based on our Registrar's assumptions. Thanks also to Brian for suggestions now included my hand-count forecast tool (it is permanently archived there with a record of revisions embedded in comments).


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Dave Berman, C.Ht. has extensive training and experience in Hypnosis, Neuro-Linguistic Programming (NLP) and Life Coaching. He is also a Certified Laughter Yoga Leader, Ivy League graduate (B.S. in Communication from Cornell University), and a (more...)

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