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Newsday.com

New York won't meet HAVA requirements by presidential primary

By VALERIE BAUMAN

Associated Press Writer

November 25, 2007

ALBANY, N.Y.

New York state has missed every deadline imposed by the federal government for the Help America Vote Act, and as February's presidential primary approaches, a federal court next month may determine how the state proceeds.

A fed-up U.S. Department of Justice sued the state in March 2006 because it was the only state that still had not complied with HAVA _ a federal law enacted after the messy 2000 presidential election that requires up-to-date, accessible voting machines.

The state has submitted two different plans to the court for how and when it could meet the federal mandates of HAVA. Both sides will return to federal court Dec. 20, when Judge Gary Sharpe may decide the issue. No matter what happens, the state won't be in compliance for the presidential primary.

One of the most pressing issues is providing accessible voting machines for the disabled. New York currently has at least one such machine in each county, but HAVA requires one at each polling place.

"Continued foot dragging in New York state is, in our opinion, an outrage," said Susan Dooha, executive director of nonprofit The Center for Independence of the Disabled in New York. "New York has not taken the civil rights of voters with disabilities seriously."

The other issue is that HAVA requires that all pull-lever voting machines be eliminated and new HAVA-certified machines be put in use by the Feb. 5 presidential primary. Pull lever machines don't meet HAVA requirements because they aren't accessible to the disabled, they don't create a permanent paper record, or allow the voter to "audit" their vote to ensure its accuracy.

"We don't think we can meet that and that will be something the judge will have to decide," said Lee Daghlian, a spokesman for the state Board of Election.

New York state created more stringent requirements for voting machines than the federal government did and no machine has successfully met the standard and been run through the appropriate tests to reach certification.

The federal government argues that the state's strict rules are no excuse for noncompliance, but acknowledges in court documents that "as things stand today, it would appear infeasible to replace all lever voting machines in the state with all fully HAVA-compliant systems for use in the February 2008 primary."

The state Board of Elections commissioners could not agree on one plan of action, so submitted two to the court. The first says the state could put one accessible voting machine in each polling place by the November 2008 presidential election and fully comply with HAVA _ by replacing all pull-lever machines _ by the fall of 2009.

The other plan is less specific, saying only that some accessible machines would be in place by the November 2008 presidential election. It also calls to replace lever machines in 2009 but contains no specific timetable.

"(The New York state Board of Elections) submitted excuses and really got no further than a concept paper stage," Dooha said.

The court will also consider arguments from the Department of Justice that the state needs to take "immediate and specific steps" to carry out their obligations to comply with HAVA.

The Department of Justice has recommended that the federal judge consider taking the power out of the state's hands and assigning an independent appointee to manage the issue.

So far, New York state has only spent $20 million in federal money provided to reach compliance. Another $190 million is sitting in the bank waiting for the state to figure out how to continue.

Barbara Bartoletti, of the League of Women Voters, said she is concerned that the DOJ's requirement would force the state to waste money on machines that wouldn't meet the state's standards, resulting in New York having to buy new machines twice.

If the state is forced to compromise its strict standards, that could create chaos and inaccuracy in federal elections, Bartoletti said.

"This is a big deal and people have to have confidence that the people they want to represent them truly are representing them," she said.