New York Elections – The Insider View

January 5, 2008

Explanation of the Court Session

by Teresa Hommel




1. The court session lasted two and a half hours. This is a small excerpt.


2. The first issue the judge had to resolve was whether or not to allow various citizen groups to file amicus briefs, also known as "Friend of the Court" briefs. This allows persons who are not parties to the litigation to put information and arguments before the judge. Perhaps a dozen amicus requests were submitted to the court.


The judge ruled that he would consider these briefs but only to the extent that they contributed to a question before the court, such as whether given machines met the minimum requirements of HAVA.


3. The second issue was whether to allow interveners. If allowed to intervene, a party can appear in court, file motions, and appeal decisions. Nassau County filed a motion to intervene in June, 2006, and was denied. After the DOJ re-opened the lawsuit in November, Nassau filed a motion asking the judge to reconsider his earlier decision. Also, the State Board of Elections also filed a motion to join all the counties of NY State as parties.


We entirely omitted the argument between the judge and Nassau County's lawyer due to the lawyer's inarticulateness and unpreparedness. We shortened the argument by the State Board, but left a small flavor of it.


The judge turned down the requests for intervention and joinder.


4. The judge refers to various "reasons" for non-compliance. Some of the reasons were that, between June, 2006, and now:

(1)               all machines submitted to NY state failed their certification tests. New York is the first and only state to independently test machines before purchase.

(2)               The testing lab NY hired was decertified by the federal Election Assistance Commission.

(3)               NY had to hire a new lab.

(4)               The NY State Comptroller refused to approve the first contract with the new lab, and the contracting process had to be done a second time


5. New York state law has 3 unique requirements for voting machines:

(1) full-face ballot, (2) sip and puff accessible device, (3) voter-verified paper trail


6. NY state regulations require source code for ALL software in a voting system to be submitted to the state to be held in escrow. This has led to a conflict with Microsoft, which will not provide its source code to be provided to NY state for this purpose. All voting systems from major vendors are built on top of Microsoft operating systems.


7. There is frequent reference to minimum HAVA standards. HAVA has no standards other than (1) each poll site should have at least one voting system that provides a private and independent vote for voters with disabilities, and (2) voting systems should provide a "manual audit capacity." The Fraudulent Voting Machines posted at meets HAVA standards.


8. HAVA defines a voting system as "equipment, people, and procedures." The DOJ attempts multiple times to re-write HAVA, to replace the word "system" with "machine." Lever machines are the most accurate and tamper-proof voting technology invented so far. A voting system involving a lever machine has a manual audit capacity because the poll workers copy the tallies from the face of the machine onto paper. This is why the DOJ repeatedly says that the lever MACHINE doesn't print a tally report.


9. The NY State BOE has two co-executive directors, two co-chairs, and four commissioners. It is split, half Democrat and half Republican. When the court required a HAVA compliance Plan to be submitted, the Ds and Rs could not agree, and submitted two plans to the court. The D plan from co-executive Director Stanley Zalen, was detailed and complete. The R plan was merely an outline without details.


10. The most skilled courtroom lawyer is Mr. Dvorin from the NY State Attorney General's office. Notice how he sidesteps admitting that NY state has missed HAVA's compliance date of Jan. 1, 2006:


DVORIN: The only issue here is when compliance has to take place.

COURT (50,22) That's already fixed. That was January of 2006.

DVORIN (50,25) We can't acknowledge the date has passed. You have to deal with

things as they are now in a way that's consistent with the spirit of HAVA.


Mr. Valentine, SBOE Republican, sidesteps the lever machine issue:

HEFFERNAN (85,21)  Lever machines don't comply with HAVA, lever machines have

to be replaced and they have to be replaced as soon as is possible.

VALENTINE (86,8) No member of the State Board has said that the ballot marking

device is sufficient and lever machines will stay. We've never taken that



11. Full transcript: , NY page , under DOJ lawsuit.


12.  Terms:

1.      HAVA – The Help America Vote Act, passed in 2002.

2.      Preemption – the legal concept that Federal law concerning a particular topic can override the state or local government’s law on that topic.

3.      Contempt (or contempt of court) – an act or failure to act by a party in a legal action that can embarrass, hinder, or obstruct the work of the court, and can be punished by jail. Failure to comply with a judge’s order can be said to be contempt of court.

Who’s Who

The court, Judge Gary L. Sharpe, United States District Judge

Todd Valentine, Republican lawyer, State Board of Elections

Heffernan, US Dept of Justice lawyer

Dvorin, Lawyer from the office of the Attorney General of NY State

Collins, Democratic Lawyer, State Board of Elections



Time Line

Oct. 2002            HAVA passes

July 2005            NYS passes implementing legislation

Jan 2006            HAVA deadline for purchase of new equipment

March 2006            DOJ files lawsuit against NYS

June 2006            Court issues remedial order for NYS to take specific actions to comply

Dec 2006            Vendor Summit – no machines passed all their tests

Jan 2007            NY Times reports NYS’s testing lab is not certified

Aug 2007            NYS Comptroller nullifies contract with new testing lab

Nov. 2007            DOJ files motion to enforce

Dec 11, 2007            NYS finalizes contract with new testing lab, SysTest of Colorado

Dec 20, 2007            court session




What will happen next?

Friday January 4, 2008, the State Board of Elections submitted their plan to the Court for review by the US Dept of Justice and the judge.


The judge has to rule whether the plan is acceptable, and can put conditions or restrictions on it. He could reject it entirely, but given how he conducted the Dec. 20 session, if it looks reasonably achievable, he will probably give NY one more chance to comply. He seemed to imply that the Zalen plan with specific dates attached would be acceptable, and he made the US Dept of Justice also agree to that, all of this depending on the specifics laid out in the new submission.


There is nothing unexpected in the Jan. 4 plan, which follows the general timeline laid out by the Zalen plan: BMDs in all polling sites by 2008, full lever machine replacement by 2009. Certification testing is being resumed ASAP, with all systems (Lot 1 (formerly known as Plan A) and Lot 2 (formerly known as Plan B) tested simultaneously. The BMD testing will be prioritized, with a goal of completing it by the end of February. Lot 1 testing will take longer as there is much more to be tested. The goal of holding the machines to NY's current strict regulations may suffer -- the regulations could be altered if the pressures of adhering to the timelines get too strong.


Five systems have been submitted as Lot 1 (Plan A) and/or Lot 2 (Plan B) systems:

4 BMDs-scanners, one DRE.


1.      Automark (Diebold/Premier version) and scanner

2.      Automark (ES&S version) and scanner

3.      Sequoia/Dominion BMD/Scanner

4.      Avante BMD (the same as the one purchased in the earlier Plan B with the addition of an 11x17 printer to print a full face ballot)

5.      Avante full-face DRE with addition of 11x17 printer to print a full face ballot -- the only DRE, but it was submitted as a BMD AND a Lot 1 system.


Liberty may still submit their DRE as a Lot 1 and/or Lot 2 device.

Sequoia has NOT submitted their huge 4-screen DRE. Given the big national push and NY state tour they’ve given to the new Dominion scanner/BMD combo, they may abandon the big DRE.



If a BMD does not pass testing, it will not be ordered, even though it was initially on the list approved 1/23/08. Exhibit C, line 45 says “Issue Purchase Orders” on 2/29.




We now have a defacto definition of HAVA compliance which excludes levers. The EAC and DOJ(?) have issued opinions that levers are non-compliant, and DOJ claims this in their suit against NY.


Connecticut and PA, by abandoning their lever machines to comply with HAVA, have created precedent for this interpretation as well, and precedent means a lot in court.


HAVA says if you take the money to replace levers, you have to replace them. NY took the money, and no elected or appointed official would dare say we should give it back.


No one has yet argued the issue of what constitutes HAVA compliance. Because we now have a defacto definition, it is unlikely anyone will. Certainly not the NYS BOE which is mindful of Judge Sharpe's threat of jail and has never seriously indicated that they think lever machines are compliant. Possibly a large county like Nassau, or Suffolk that argued in State Court for the right to keep lever machines. County commissioners around the state are resigned that the levers must go, as much as they wish it were not so.