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July 20, 200

Lever voting machines may still be used by N.Y. counties

Outdated equipment can't be replaced by next elections

By Cara Matthews

Gannett News Service

ALBANY -- Since the Legislature has not acted to extend a now-unworkable deadline in New York law, the state Board of Elections will draft an opinion advising counties that they can continue using lever voting machines, officials decided Thursday.

The Legislature in 2005 approved an election-modernization law that prohibits the use of lever voting machines as of Sept. 1, not anticipating that updated equipment wouldn't be in place by then. The GOP-led Senate and Democrat-controlled Assembly could not agree before the end of the legislative session on a bill to extend permission for using the decades-old machines.

That leaves county boards of election in a difficult spot. The only alternative to lever machines would be emergency paper ballots. With the Sept. 18 primary looming, local officials want to know if they can maintain the status quo, or if they must set up a different system of voting.

"The commissioners of elections in the City of New York have joined with their colleagues across the state in urging the governor and state Legislature to promptly enact remedial legislation that would address this impending crisis," Steven Richman, general counsel to the New York City Board of Elections, wrote in a July 13 letter to state elections officials. "The outcome of these efforts is uncertain at this time."

Because of that, Richman said, New York City is seeking a formal recommendation that sets out the legal basis for any recommended action.

State Elections Commissioner Douglas Kellner recommended that the panel's lawyer draft an opinion that permits all boards of election to continue using lever machines.

"It's an increasing possibility that our state Legislature will not resolve this and county boards are entitled to guidance from us," he said.

The federal Help America Vote Act of 2002 required states to modernize elections and make voting more accessible for people with disabilities. But New York has been behind on meeting requirements of the law -- passed in the wake of the 2000 presidential elections, when it took more than a month to figure out who was elected -- and has not certified new voting machines.

The state legislation passed in 2005 set forth how New York would implement HAVA and update its election process.

New York has lagged behind other states in meeting HAVA requirements, which prompted a lawsuit from the U.S. Department of Justice in March 2006. After having problems with its testing authority, the state Board of Elections is seeking a new company to certify new voting technologies. Counties will have to choose from among the designated machines.

New York City's letter emphasized that time is running short. Without "prompt enactment of corrective measures," the city would be forced to use paper ballots and poll workers would have to count by hand hundreds of thousands, if not millions, of them. It would need to train workers, obtain supplies and equipment and take other measures to set up a paper-ballot system.

Also at issue are the state law's requirements that each polling place be equipped with at least one voting machine for people with disabilities, Richman wrote. As a result of the Department of Justice lawsuit, a federal court judge ordered ballot-marking devices to be used last year as an "interim remedial measure." The effective dates for that order have expired, he said. There are no federal elections in New York this year.

"We feel that it's in everyone's best interest to reach a consensus on this. It's a priority of ours in the Senate..." said Scott Reif, a spokesman for Senate Majority Leader Joseph Bruno, R-Brunswick, Rensselaer County.

The Assembly "is aware of the issue and actively negotiating a compromise in order to allow levers to be used," said Sisa Moyo, a spokeswoman for Assembly Speaker Sheldon Silver, D-Manhattan.

One bill had a deadline of March 2008 for ending the use of lever machines, and another had no date set.

"Right at the moment, we will have nothing governing what will happen in September 2007," said Barbara Bartoletti of the League of Women Voters.

Kellner, citing legal research, said the rationale for allowing counties to continue using lever voting machines is that even though the law prohibits it, the legislative intent wasn't to put the state and counties in this predicament. The opinion could be challenged in court, he noted.

Commissioners will recommend the use of limited ballot-marking devices for voters with disabilities.

"I think we all agree that the lever machines should be continued. I think the alternative to the lever machines is clearly worse that the lever machines," state Elections Commissioner Evelyn Aquila said.

Keeping lever machines in use is the only logical thing to do, said Bo Lipari of New Yorkers for Verified Voting. "There's no point right now to try to institute another system when we have a system that works and we know how to use it," he said.

clmatthe@gannett.com

AP-NY-07-19-07 1937EDT