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DREs Take It To Court

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Court Asked to Reverse State Ruling Eliminating DREs
Judge Expected to Rule on 2/4/8

The DRE vendor LibertyVote argued in New York State Court that the State Board of Elections acted “ arbitrarily and capriciously” when it decided the DRE does not qualify for use as a Ballot Marking Device in 2008. Now the Court must decide whether to overturn the Board's decision that the DREs do not satisfy the requirements of New York State Election Law. The DRE vendor wants the Court to authorize their machine despite the Board ruling that it provides no usable way for voters with disabilities to verify their ballot.

I was surprised to see that LibertyVote had set up one of their DREs in the Courtroom, clearly preparing to demonstrate it for the Judge. Normally the focus of an Article 78 hearing is narrow, determining if the Board's decision was reasonable, not substituting the Court's opinion on DREs for the decision of the Board. As it turned out, the attempt to ‘demo' the DRE may have worked against LibertyVote's lawyers.

The DRE vendor argued that the Board's decision was “subjective, biased, and unfair to LibertyVote”. Going further, the attorneys argued that it was “a violation of LibertyVote's rights” and that the Board's determination was “arbitrary and capricious”. They claimed that the Board's vote on January 24 eliminating DREs was invalid because all four commissioners weren't present at the vote. Finally, LibertyVote's lawyers concluded by asking the Court to disregard the Board's decision and determine that their DRE “meets Federal and State laws”.

Attorney Paul Collins, representing the Board's Democratic commissioners, countered that New York Election Law explicitly allows certification of voting equipment by specifically requiring “a determination by a majority of the commissioners”, so the Board's vote was clearly legal. He also argued forcefully against LibertyVote's contention that the decision was arbitrary. Citing the affidavit of Commissioner Doug Kellner (D), he argued that the LibertyVote DRE does not meet the standards set by New York law. The Kellner affidavit describes the deliberations involved in evaluating the DRE, citing the requirements of HAVA, my evaluation for the Citizens Advisory Committee, and comments from NYSILC and the Brennan Center.

The most interesting moment came when LibertyVote's lawyers asked to demonstrate their DRE for the Judge. Paul Collins jumped up and said that he was willing to agree to a demonstration if a “voter in a wheelchair or with visual disabilities” would test the machine. Using the opportunity to visually demonstrate the machines limitations he repeatedly went over to the DRE asking how a voter in a wheelchair could possibly reach the small piece of paper that LibertyVote was calling a “ballot”. After that LibertyVote's lawyers thought better of their motion to demo the machine, finally asking the Court only to accept one of their grocery store receipt style “ballots” into evidence without an actual demonstration.

Another surprise came out when Board attorney Collins asked the Court to accept into evidence a letter that LibertyVote had sent to all county election commissioners the day before the hearing. In the letter, the DRE vendor makes an astounding claim – that they had been placed back on the list of approved machines. The only problem with this claim is that it's not true - the Court has not yet ruled whether to add the LibertyVote DRE to the approved list! LibertyVote got caught red handed sending out false information to counties about the Court's decision. This did not seem to please the Judge, but she allowed the vendor to continue arguing their case.

Talk about astounding claims, another one was made by attorney Alison Carr, representing the State Board's Republican commissioners and who seemed determined to help LibertyVote make their case rather than defend New York State. At one point LibertyVote's lawyers argued that whether or not the ballot verification mechanism was actually usable by voters with disabilities was beside the point because it wasn't part of the bid specifications. Attorney Carr rose to back them up, saying that “Usability is important later when reviewing for certification, but not now”. In other words, it doesn't matter whether it's already been determined that the machine is unsuitable for use, because we aren't supposed to evaluate that yet! Thank goodness that attorney Collins was there to defend New York State's voters as attorney Carr seemed confused about whose side she was on.

This case really shows what LibertyVote and their Dutch backer Nedap who manufacture the DREs think of New York State voters and our laws. For LibertyVote and Nedap, this is about their right to sell whatever product they want, no matter how unsuitable it is for its intended purpose. For LibertyVote and Nedap, this is about their right to profit large from New York's HAVA funds, no matter that they've failed to be approved by the state of New York. For LibertyVote and Nedap, this is not about the needs of voters with disabilities or the citizens of New York State, this is simply about cold, hard cash.

Judge O'Connor is expected to rule by the end of the day on February 4, 2008.


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Bo Lipari is the executive director of New Yorkers for Verified Voting.
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