Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- 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)
California Deep-Sixes Diebold
The State of California has rejected Diebold's TSx, because of a 10% failure rate in state testing, leaving local election officials scrambling to come up with an alternative in time for the 2006 elections. The Oakland Tribune has this report. California is among the states that have mandated that electronic voting machines generate a contemporaneous paper record (aka, "voter verified paper audit trail"). One of the chief problems with Diebold's machine is -- yup, you guessed it -- paper jams.
In fact, the story report, there's no system certified in the state that generates a contemporaneous paper record and is disability-accessible. This puts California counties in a pickle, given HAVA's 2006 deadline for installing accessible voting equipment. Right now, the only systems that comply with HAVA's accessibility requirements are electronic systems. But no certified electronic system complies with the state's paper trail law.
Unless things change quickly, then, counties may be stuck between the Scylla of violating HAVA's acessibility requirement and the Charybdis of violating the state's contemporaneous paper record requirement. If that's the case, and there's a real conflict between violating federal law and violating state law, then state law will have to give. In other words, accessible voting machines have to be provided for disabled voters, even if they don't generate the contemporaneous paper record required by California law.
Update: According to this follow-up story, the problems with Diebold's TSx-with-attached-printer were even worse than originally reported. In California's test of 96 machines, almost one-third reportedly had some sort of problem. Ten machines had a total of 11 printer jams -- further evidence that imposition of the contemporaneous paper record require is likely to do more harm than good.
Another Update: Joe Hall has these thoughts on recent Diebold news coming out of California and Florida, in his "Not Quite a Blog 2.0." Joe and I don't always agree on voting tech matters, but he's always thoughtful. He reports that Diebold has threatened to protect its "proprietary interests," speculating that the company might be seeking to prevent Diebold equipment from being used with a"hybrid" system like the Automark, which allows visually and manually impaired persons to print out a ballot that can be read by an optical-scan machine. My own opinion is that this won't help California counties, even if it could be done, because I don't think that hybrid systems such as the Automark comply with HAVA' s requirement that voters with disabilities be provided with equal access, including independence and privacy. (Note: This update was corrected in response to clarification from Joe Hall about what he thinks Florida counties might consider doing.)