Dear amici and others,
I never thanked all of you for your time, energy and commitment on the amicus motion. I filed the amicus motion at the moment of the deadline and ran to catch a plane and have only returned recently, so please accept my thanks for being part of the amicus motion and let me take this opportunity to clarify some misconceptions about what happened in the federal action as well as talk about where do we go from here.
As an amicus, or "friend of the court", the court can choose to accept the motion or not and can choose to read it or not and can choose to ignore what we said. That's the way that works because we're not parties to the litigation. It was a shot we took and Judge Sharpe ignored our positions. He accepted our motion and may or may not have read it, but he clearly ignored what we had to day. That is not the same as ruling against us. I know some of you have expressed your disappointment at the travesty, but understand this is not a defeat. We could only have succeeded, in getting the court to look at the evidence of failed computerized systems or recognize that hand counting was the only HAVA and democracy-compliant means to vote for 2008, or gotten ignored. The court did not rule against us- it couldn't. So by being ignored the issues we raised are still alive and well but need to be placed before a court that is required to rule on them.
Given all the hard work many of us did I do not want to lose the momentum and the fruit of our labor. A number of the amici killed themselves working on the nuts and bolts of hand counting in order to demonstrate how doable it is-- trying to get the rest of us over the fear of hand counting. There is excellent work contained in our motion papers that needs to be used. The federal court didn't order NYS to use computers to run their elections- the Judge wanted NYS HAVA-compliant. Yes it's true that in the minds of all parties to the litigation and the Judge, HAVA-compliant only meant computerized elections, but the choice to go with computers rather than hand counting to achieve HAVA compliance was NYS's.
Therefore it is NYS that should be challenged for choosing to opt for "scientifically-condemned voting systems" (that was Rady's excellent framing). If you read thru the amicus brief you will see that we argued the constitutional right to vote includes more than just the right to cast a vote-- it includes the right to know one's vote was received and to know one's vote was counted as cast. Voting on computers with their oblique processes and their secret software deprives us of the right to know our vote's been received as well as the right to know our vote's been counted as cast. Legislation which would deprive citizens of any part of their constitutional right is unconstitutional. That is the issue we need a ruling on, but the federal court never had to go there so long as the parties didn't put that issue before the court.
Were we to commence an action in NYS court on these grounds, the State Supreme Court would have to rule on that issue. I would like to bring that litigation and will if I possibly can. I have not been able to find another NY attorney to do this with me and it's a huge amount of work and somewhat suicidal for one attorney to take it on. But maybe with help from you guys- maybe I can do this. I'm working towards that.
We've got nothing to lose in NY. Under the plan filed by the SBOE, New York is getting BMDs for 2008 and some kind of computers to vote on for 2009. Whatever computers are selected for 2009 there's one thing we know for sure: the vote count will be secret, known only to the partisan, irresponsible voting vendors selected and known partially by a few members of our government. The only ones who absolutely need to know how the vote counting is done-- the citizens who intend to remain self-governing-- will never know. Is that constitutional? Is that democratic? Clearly it's not and whether a court will agree or not- that's the risk a state action would take. All depends on the judge, but as I said, what do we have to lose that we aren't already losing?
No state court has ruled on this issue yet- so obviously a positive ruling would be good for NY and good for the nation. If I thought there was another state where this litigation could happen that would have a better chance I would not consider bringing this litigation. Obviously it's a big responsibility to risk making bad law (not that what one state court does is binding in another state, but it does nonetheless have weight). However, it's been 6 years of failed, secret vote counting and no one has brought that litigation in any state court - so do I take the risk?
In any event, a heartfelt thanks to everyone who worked so hard and put in so much of themselves in pursuit of our birthright.
Andrea T. Novick, Esq.
Finder Novick Kerrigan LLP