EXCERPT OF FEDERAL COURT SESSION, Dec. 20, 2007
Some editing has been done for readability.
Full transcript is available at www.wheresthepaper.org/Transcript20DE07.pdf
3,2 and other such numbers below represent page,line in the
full transcript.
CLERK
3,2 The date is Thursday, December 20, 2007, at 9:00 AM. In the matter of the United States of America versus New York State Board of Elections. We are here for a motion hearing.
COURT
4,3 Be seated, please. Let me give you an opening statement about where we're at and what's on the table, and then we'll take the issues up in some order that seems appropriate.
In October 2002, Congress passed HAVA. By January 1 of 2006, every state in the union was required, by Congress, to meet certain minimum voting standards. By January 1 of 2006.
As we sit here today, every state in the country has complied except New York State. Accordingly, the United States sued on March 1 of 2006.
On June 2nd of 2006, the Court issued a remedial order requiring New York State to take specific actions.
Here we sit, 16 months later, and New York has failed to comply with this Court's remedial order.
I don't know what anybody or everybody wants me to do. I've read the newspapers, I've watched the TV reports, I've listened to the pundits on behalf of the intervenors and everybody else about what it is I'm doin' today, but nobody's talked to me about it and I'm the one that's doin' it.
And as I sit here, I'm embarrassed. I'm 61 years old, I have been a New Yorker for 61 years, and I'm embarrassed on behalf of the State of New York that it thinks, for whatever its reasons are, intervention by the executive branch, intervention by the legislative branch, intervention by people as proposed amicus who have all the answers. They disagree with one another, but they all have all the answers. It doesn't stop the fact that I'm embarrassed.
Why is it that New York thinks that it can thumb its nose at the federal government and not comply with federal law? Congress has the right to preempt state law insofar as the electoral process is concerned in federal elections.
There are limits to what anybody wants me to do about all of this. But I have options beyond what I see in the papers [submitted to the court]. I could follow the example of Eisenhower in 1957 and call out the National Guard and make them install machines in compliance with federal law. We didn't let Little Rock, Arkansas, thumb its nose at the country and we are not gonna let New York thumb its nose at the country. New York must comply. Noncompliance is not a choice.
As an alternative to the National Guard, why couldn't I lock up the Commissioners of the State Board of Elections for Christmas and tell 'em as soon as they comply with the remedial order that I put in place, I'd let 'em outta jail? That's called contempt.
What seems to me to be the ridiculous option is what I see everybody talking about, which is you want me to do your job. You want me to pick voting system standards for you, through a special master or otherwise.
There's my speech. So, as a New Yorker, I'm not happy. As a federal judge who drew the short straw on the random wheel of assignment in this case, I'm not happy either.
11,8 All right. Let's take up the amicus filings. To the extent that they have some bearing on a decision that's before the Court, I will consider the briefs.
12,11 [Next,] there are other points of view that relate to implementation. I have submissions [from the Nassau County Board of Elections and the State Board of Elections] in that regard.
21,17 Let me hear from the State Board of Elections on its motion to join the 58 counties.
VALENTINE
21, 10 The counties, as you pointed out, they are a group of divergent interests and each county is in a different position, which is why we feel, at this point in the litigation, that it's necessary for the counties to become parties. Because, you know, in simple terms, that's where the rubber meets the road.
COURT
21,1 Doesn't the State Board of Elections control what it is the counties do? The counties are not free just to pick -- Let's talk about machines. Can't just pick any machine they want? They have to pick a machine certified by your client, don't they?
VALENTINE
22,8 That's correct, your Honor.
COURT
25,6 I want to get into the aspect of why there are legal interests of the County Boards of Election, that the State Election Commission is standing here before me saying we can't take care of the people we're tasked by law to take care of, therefore, they need to be parties to this lawsuit.
VALENTINE
25,13 That's a fair observation and the answer is that we --
COURT
25,15 I'm surprised it's one you'll admit the answer is "yes," you can't take care of 'em.
VALENTINE
25,17 No. Well, we can but --
COURT
27,20 How have you satisfied your obligations under my remedial order? Sixteen months ago, I told ya to pick a machine, and here we sit, in December, a week before Christmas, and you still haven't picked a machine.
How have you complied? You can't even submit a plan to me. You got the Democrats arguin' with the Republicans and you're paralyzed over a 50/50 split.
VALENTINE
28,2 I wouldn't characterize it as paralysis.
COURT
28,4 You might not, but as a federal taxpayer and a federal judge, I do, I characterize it as paralysis, paralysis by analysis, a thousand different reasons why you can't comply. But it all comes back to what I said in the first two minutes when I was on the bench: New York will comply.
VALENTINE
28,10 And all sides have reiterated their intention to comply.
COURT
28,12 The question is when?
VALENTINE
28,13 That's true, your Honor.
COURT
28,14 Yeah.
VALENTINE
29,1 We have set a very high standard for these voting systems, and part of that was based on guidance given us by the federal government.
COURT
30,1 I don't care what the [NY state] legislature says [and the high standard it set in NY state law].
30,6 The federal government has preempted this field and says you shall comply. Now, it's true that New York State may have higher machine standards than are required by federal law. But it's also true that Congress has told you you will meet minimum standards and you'll meet them by January of 2006.
New York hasn't done that. So, if New York is paralyzed over its inability to meet its higher standards, that's irrelevant, because noncompliance with federal law is not an option.
I do want to stick and resolve the motions for joinder or intervention.
VALENTINE
30,23 Each county is in a different position; that's why a single representative county, such as Nassau, would not adequately represent the views of some of the smaller counties, and that's why they should all be moved in the case.
COURT
31,8 What does the federal government want to tell me about the motions to intervene or to join?
HEFFERNAN
31,10 Your Honor, the claim by the State Board that it doesn't basically run state elections is really crazy. I mean, state law makes it very clear that it's the Board that's in charge of the elections in the state. The State has to control its own elections. And so to make a claim, as it does, that it's unable to carry out HAVA and that it doesn't have the statutory ability to control the elections, in our view, is absurd.
35,9 So, at this point, if HAVA is not complied with, if lever machines are not replaced by next September, which is the first federal election after March 2008 in New York, New York stands to lose $50 million.
COURT
36,4 For the reasons articulated by the federal government in its response to both motions, the motion for reconsideration on the motion to intervene by Nassau County and the Nassau County Legislature, the State Board of Election's motion to join, I adopt the reasoning, the rationale and the citations to authority provided by the federal government as consistent entirely with my view of this case.
I deny [Nassau County's] motion for reconsideration. I deny the [State Board of Election's] motion to join the County Boards of Elections.
36,15 Let's take up the enforcement action. I'm not happy with the State Board of Elections. Now, let me say it in this fashion: To the extent the State Board of Elections points to things in State Law that have prevented them from doing one thing or another, a piece of legislation perhaps, or an executive decision by some other portion of the executive branch, I understand why somebody in the shoes of the Commissioners of the State Board of Election find themselves in a catch 22 as they see it between State Law and federal law.
37,9 Let's fly above the trees for a second. I understand why the State Board of Elections may feel constrained by State Law. The bottom line is, when it comes to the 50-pound gorilla in the room, which is me, the feds preempt State Law.
38,5 And I don't want to hear a bunch of excuses. Compliance is gonna happen. The question is how am I gonna make it happen?
44,7 I suppose I could have ordered plan B machines [, Ballot-marking devices,] in all kinds of polling places instead of one per county, right?
DVORIN
44,10 Your Honor could order that, but then you would be ordering the use of machines that have not been certified, not been found to --
COURT
44,13 But they would have been compliant, wouldn't they?
DVORIN
44,15 They would not have been tested. They would not have been determined, through objective testing, to be compliant. That's the point.
45,2 They can't be said to meet the minimal requirements [of HAVA] until they have been tested and certified as meeting them. I would submit that New York ought to be allowed to proceed through that process.
49,9 Mr. Heffernan, in his papers, really refuses to look at what's transpired since HAVA was enacted and what the situation is now. He read the accounts and the facts concerning problems with machines, they have been well publicized, and, in fact, in the last week or so, there have been problems in Ohio and Colorado, the most recent being Colorado, three days ago I believe, where machines were decertified and they were decertified for problems with security; that is, a vote cast might not be recorded that way.
44,20 These problems have arisen since the first election after HAVA and, in fact, the EAC was prompted to heighten its standards to the 2005 level. And I think it would have been remiss for New York not to look at the experience of other states. The other states had no background, no experience against which to measure what they needed to do to take a cautious, deliberate, reasoned approach to developing new technology. New York had the benefit of that.
COURT
50,5 All 49 states, includin' California, with Stamford and all those universities out there, they're all stupid compared to New York? Be careful with that argument.
DVORIN
50,9 Well, I would say New York's probably the best, but it's not really a point of casting blame or whether they acted too quickly. It's what happened. They didn't have that experience.
COURT
50,13 But you understand, don't you, that, from my perspective, those are all arguments as to why we, in New York, have not complied with Federal Law. And I've already told ya noncompliance with Federal Law is not an option.
DVORIN
50,18 Your Honor -- and it's an option that New York doesn't contemplate taking. 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 And, obviously, your Honor has the authority to exercise its discretion, looking at the balance of interests, looking at what's reasonable and fair, to come up with a date. We can't acknowledge the date has past, but the issue is you have to deal with things as they are now and, we would submit, deal with it in a way that's consistent with the spirit of HAVA.
51,7 We keep talking about the deadlines. Implementing in 2008, is at odds with the purpose of HAVA. HAVA was a reaction to the 2000 election, the "debacle" of the 2000 election. That's why it was passed.
52,18 The thrust of the State's position that the Court should be mindful, as I'm sure it will be, of the experiences of other states and so forth, problems that have arisen, [is] so that the intended purpose of HAVA is carried forward.
52,24 The other point that we do make, obviously, is that based on the submissions by the Board, which we have no reason to dispute, it is simply not realistic and not consistent with HAVA and not consistent with guaranteeing, preserving fundamental rights of voters, to order that to be done in 2008.
It is [realistic] for the Board to come up with a plan. But what the State wants to do is protect that right to vote, and that can't be done, that cannot be done fully and assuredly if we're forced, if the Board is forced to fully implement in 2008.
COURT
58,3 You don't have a machine -- those machines that are in place, lever machines, do not comply with Federal Law; don't we all agree with that?
VALENTINE
58,13 Not a lever machine by itself, no, your Honor.
COURT
58,15 I just got done votin'. It's the same machine I been usin' since I was 18. Does that machine comply with Federal Law? Is there a paper trail?
VALENTINE
58,20 They do not produce a voter individual paper trail, but that is not a requirement under HAVA, an individual voter paper trail.
What the lever machines fail to meet in HAVA, which is why the State Board and the State has obviously seen the need to replace them, is they do not provide the accessibility for the voters who are disabled. It counts the votes and has accurately; they have for a hundred years.
HEFFERNAN
63,21 They haven't claimed that lever machines comply with HAVA, and despite Mr. Valentine's statement before, they don't comply, not only in terms of accessibility, but also in terms of HAVA's requirement for manual audit capacity, a piece of paper that the machine produces.
As I understand it, there are some lever machines in New York State that have a printing attachment to print out a piece of paper, but for a large majority of the lever machines in the State, they don't have that, so they also don't comply with HAVA in that regard.
71,6 And to the extent that the Court needs to take action
73,10 we are at the point where action has to be taken.
COURT
74,7 What is it I ought to do equitably to either compel them to act or to act in their stead? What is it I ought to do from the Government's standpoint?
HEFFERNAN
74,10 Well, your Honor --
COURT
74,11 One of the things, it seems to me, that you dance close to is appointment of a Special Master.
HEFFERNAN
75,1 There is authority in federal case law for Courts to order appointments of Special Masters whose sole business, basically, will be to carry out the obligations that the defendants or the responsible party needs to take in order to carry out federal law.
COURT
75,16 Who would I appoint as a Special Master? Not specifically. Of type, character or quality. Who did they appoint in Alabama?
HEFFERNAN
75,19 In Alabama, they appointed the Governor.
COURT
75,21 So maybe I ought to appoint the Governor to take care of this problem.
HEFFERNAN
75,16 Your Honor, we haven't moved yet for appointment of a Special Master.
78,16 I think our focus here needs to be on accessibility and the focus needs to be on next fall having in place, in each polling place in the state, an accessible voting system or voting device that will be HAVA compliant, or as close to HAVA compliant as possible, and allow people with disabilities to go to a polling place in their neighborhood and vote along with everybody else, which is what HAVA intended.
79,15 One of the Board plans, the Democratic plan, the Zalen proposal, the one that actually has numbers, the one that actually has dates in it, comes as close right now to doing just that as anything we probably could propose.
80,17 Mr. Zalen, the co-executive director of the Board and who actually has been appointed as the Chief State Election Official in the State by Governor Spitzer, indicated that that time frame is the realistic time frame.
85,14 To the extent we are talking about one accessible system, one system in each polling place, that doesn't end the story there.
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 position.
**********
COURT
93,5 The State Board is gonna submit its plan by January 4th. I am going to want to know, as promptly as possible, what the federal government's position is regarding that plan and whether further action is going to be required by me in light of whatever the details are that are in that plan. How would the federal government like to respond to the State Board of Elections' submission?
HEFFERNAN
93,17 Well, I think perhaps the best way to proceed, since we're trying to get things done as quickly as possible, would be perhaps to have a conference with the Court within a very short time frame after we get the submission from the State.
COURT
93,22 Then can I look for the federal government to seek that conference with me and to schedule it?
HEFFERNAN
93,25 Yes.
COURT
94,11 Anything further?
COLLINS
94,13 No, Your Honor.