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DOJ pushes N.Y. Elections Board to comply with e-voting rules

In court filing, it threatens to take over e-voting process

Todd R. Weiss

November 09, 2007 (Computerworld) -- Unhappy with New York state's efforts to comply with the 2002 Help America Vote Act (HAVA), the U.S. Department of Justice (DOJ) has gone back to court to try to force the state to get its election equipment and systems in place before next year's presidential elections.

And now the DOJ is even asking the court to consider taking the matter out of New York's hands and getting another agency to bring the state into compliance.

In a motion filed Nov. 5 in U.S. District Court in Albany, the DOJ asked the court to find the New York State Board of Elections in violation of a June 2006 remedial order that would have brought the state into compliance with HAVA by last September.

In an 30-page memo supporting its motion, the DOJ called on the court to "consider taking compliance out of the hands of the state and placing it in the hands of the court or others appointed by the court to achieve compliance with federal law" if the elections board does not come into compliance quickly.

"The fact that the defendants continue their noncompliance with the mandates of this court and federal law is unacceptable," the memo said. "Of perhaps more significance, however, the abject inability of the State Board of Elections today to present to the United States and this court one plan to comply with the mandates of federal law is extremely troubling, and raises the specter of the [elections board's] continuing inability to function in the context of this litigation to achieve compliance with federal law."

The DOJ sued the state in February 2006 because of its repeated delays in complying with HAVA. The court issued the eight-page remedial order in June 2006 that described in detail how the state would be allowed to bring its election systems into compliance.

HAVA, which was enacted in October 2002 in an attempt to improve the federal elections process, requires states to develop statewide voter-registration databases and install electronic voting systems or other voting machines that are handicapped-accessible. The DOJ said at that time that New York was farther behind in HAVA compliance than any other state. All 50 states were required to meet the law's provisions by Jan. 1, 2006, or face sanctions by the DOJ.

The legislation was written as part of an effort to avoid problems with older voting systems, including the so-called dimpled ballots that caused significant strife in Florida following the contested 2000 presidential race.

The act left all 50 states scrambling to comply with its mandates, including a requirement that manual voting systems, such as lever-activated machines and punch cards, be replaced with e-voting machines. It also stipulated that every voting precinct in the country have a handicapped-accessible voting machine and that each state create a comprehensive database of voters.

Lee Daghlian, spokesman for the New York elections board in Albany, said he couldn't comment on the specifics of the latest DOJ motion because it will be the subject of a federal court hearing on Dec. 6.

The problem so far, he said, is that New York's state election laws are more stringent that the federal HAVA rules, including requirements that the software used in all e-voting machines must be provided to the state so it can be held in escrow. Daghlian said that some software vendors won't release their source code, leaving the state unable to certify it and causing the conflict with HAVA rules. "It's not open source, it's proprietary," Daghlian said. "That's created a lot of problems. We're not sure how we're going to solve that."

Other state regulations are also stricter than the HAVA rules, he said. "There are many good reasons why we haven't met those requirements by the federal government. Apparently, they've run out of patience for the process."

So far, New York has not yet certified any e-voting machines for the 2008 elections because of the rules issues in dispute, Daghlian said. The state has hired a new testing lab and hopes to begin testing e-voting machines for compliance at the beginning of the year. The state will then make a proposal to the DOJ and have the plans completed by 2009, he said. Details are still being worked out.

Erik Ablin, a Justice department spokesman, today declined to comment further on the latest court motion. "Our filings speak for themselves," Ablin said.

New York is the only remaining state to not be in compliance with the HAVA rules, according to the DOJ.