New York: DREs Take It To Court
By Bo Lipari, New Yorkers for Verified Voting
February 04, 2008
Court Asked to Reverse State Ruling Eliminating DREs - Judge Expected to Rule Today
The DRE vendor LibertyVote argued in New York State Court that the State Board of Elections acted “ arbitrarily and capriciously” when it decided the DRE does not qualify for use as a Ballot Marking Device in 2008. Now the Court must decide whether to overturn the Board's decision that the DREs do not satisfy the requirements of New York State Election Law. The DRE vendor wants the Court to authorize their machine despite the Board ruling that it provides no usable way for voters with disabilities to verify their ballot.
I was surprised to see that LibertyVote had set up one of their DREs in the Courtroom, clearly preparing to demonstrate it for the Judge. Normally the focus of an Article 78 hearing is narrow, determining if the Board's decision was reasonable, not substituting the Court's opinion on DREs for the decision of the Board. As it turned out, the attempt to ‘demo' the DRE may have worked against LibertyVote's lawyers.
The DRE vendor argued that the Board's decision was “subjective, biased, and unfair to LibertyVote”. Going further, the attorneys argued that it was “a violation of LibertyVote's rights” and that the Board's determination was “arbitrary and capricious”. They claimed that the Board's vote on January 24 eliminating DREs was invalid because all four commissioners weren't present at the vote. Finally, LibertyVote's lawyers concluded by asking the Court to disregard the Board's decision and determine that their DRE “meets Federal and State laws”.
Attorney Paul Collins, representing the Board's Democratic commissioners, countered that New York Election Law explicitly allows certification of voting equipment by specifically requiring “a determination by a majority of the commissioners”, so the Board's vote was clearly legal. He also argued forcefully against LibertyVote's contention that the decision was arbitrary. Citing the affidavit of Commissioner Doug Kellner (D), he argued that the LibertyVote DRE does not meet the standards set by New York law. The Kellner affidavit describes the deliberations involved in evaluating the DRE, citing the requirements of HAVA, my evaluation for the Citizens Advisory Committee, and comments from NYSILC and the Brennan Center.
The most interesting moment came when LibertyVote's lawyers asked to demonstrate their DRE for the Judge. Paul Collins jumped up and said that he was willing to agree to a demonstration if a “voter in a wheelchair or with visual disabilities” would test the machine. Using the opportunity to visually demonstrate the machines limitations he repeatedly went over to the DRE asking how a voter in a wheelchair could possibly reach the small piece of paper that LibertyVote was calling a “ballot”. After that LibertyVote's lawyers thought better of their motion to demo the machine, finally asking the Court only to accept one of their grocery store receipt style “ballots” into evidence without an actual demonstration.
http://www.votetrustusa.org/index.php?option=com_content&task=view&id=2738&Itemid=113