Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
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- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Tuesday, May 3
Voting Machine Vendor Sues Ohio Secretary of State
The controversy surrounding Ohio's voting equipment continues. Yesterday, voting system vendor Election System & Software (ES&S) brought suit against Ohio Secretary of State Ken Blackwell, asserting that his actions have effectively given a lock on the market to a particular vendor (Diebold). The Cleveland Plain-Dealer has this story and the AP this one.
In January, Blackwell directed counties to select an optical-scan voting system. Blackwell subsequently changed course, issuing this directive on April 14, 2005 that would allow counties to select a Direct Record Electronic system, so long as it was certified and complied with the state law passed last year which requires a "voter verified paper audit trail." Right now, only one company has a federally certified voting system that meets this requirement: Diebold. (See this memo accompanying Blackwell's April 14 directive.)
Counties have until May 24 to choose a voting system and, as of this moment, may select either a precinct-count optical scan system or an electronic voting system. But if they wish to go electronic, their only option would appear to be Diebold, since that will likely be the only company that has the necessary certification for its DRE with VVPAT system.
While I've not yet seen a copy of the complaint, ES&S argues that Blackwell has set arbitrary deadlines that unfairly change the rules of the game. According to a press release issued by the company, Blackwell's actions "have effectively stolen the counties' exclusive authority to choose their own voting systems." The company also notes that, last year, 42 of Ohio's 88 counties had planned to go with ES&S. It now apparently fears that many of those counties will go with Diebold, which appears to have a lock on Ohio's DRE market.
My take: I can't comment on the merits of ES&S complaint without having seen it, but it's quite clear that the predicament Ohio finds itself in is the direct result of its decision last year to pass legislation mandating that voting machines generate a contemporaneous paper record (aka, VVPAT). As I've noted on several occasions, VVPAT devices have yet to be workable or effective. The only one that's been used on any significant scale in any real election is manufactured by a company (Sequoia) that's not competing for Ohio's business.
Given that Ohio's acceptance of HAVA money requires it to get rid of its punch cards by 2006, it's hard to see how the state could push back the deadline for counties to choose a new system any further, without imperiling the funds already received from the federal government. That's because it takes time to make the transition to new voting technology, and the few months left between now and the 2006 elections is already cutting it close. At this point, the only means by which to give Ohio counties a choice of electronic voting systems (without losing federal money) would appear to be repeal of the VVPAT requirement.
The irony here is that the VVPAT requirement, advocated by the very people who were so concerned that Diebold might manipulate an election, has effectively resulted in Ohio's voting machine business being channelled toward that very company. What's doubly ironic is that Diebold's economic interests, at least in Ohio, are now aligned with the interests of VVPAT supporters.