Dan Tokaji's Blog
Professor Dan Tokaji
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

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Equal Vote
Wednesday, February 15
 
Between a Rock and a Hard Place
That's where a lot of election officials are finding themselves when it comes to voting equipment, thanks in part to the decision of several states to pass laws requiring electronic voting machines to generate a contemporaneous paper record (aka, voter-verified paper audit trail or VVPAT). The Denver Post has this story on the situation in Colorado, which mirrors that in several other states:
Counties across the state say disharmony between new state and federal voting laws has created a quagmire that has many scrambling for voting machines that are not yet certified or available.

"There is not a machine that complies with federal and state law that I can find right now," said Adams County Clerk and Recorder Carol Snyder. "I've got money to buy the equipment. ... I'm sitting there, holding this cash, and I can't buy anything because nothing is certified."
The problem, in a nutshell, is that the Help America Vote Act of 2002 requires states to have disability-accessible voting equipment in place, and to get rid of punch-card and lever machines if they accepted federal funds. Touchscreen voting equipment can satisfy this requirement by allowing people with visual impairments and some other disabilities to vote without assitance. But states that passed laws requiring a VVPAT are finding it difficult or impossible meet the disability-access requirement, given the lack of certified and proven technology.

California's in a similar situation. As this story reports, some county election officials there are responding by asking that they be allowed to conduct their elections by mail, with vote centers set up to allow people with disabilities to vote on accessible technology. Election officials are apparently hoping that accessible voting equipment with the VVPAT will get certified before this year's primaries and that, even if they can't get enough machines for everyone, they can at least get enough to serve the (presumably few) voters with disabilities who show up at vote centers.

At least one Florida county also has HAVA compliance problems. According to this report, Leon County lost $564,421 in state funds due to its failure to have accessible voting equipment in place by the January deadline. The county's election supervisor Ion Sancho reportedly wants to use it on a hybrid electronic/optical scan system that's not been certified, and that may not comply with HAVA's disability access requirements. At least one of the county commissioners sounds a bit peeved at Sancho, writing in a memo: "While I offer no specific comment on Mr. Sancho's judgment or abilities at this time, I will note that he places Leon County in a difficult situation in failing to comply with federal and state statutes."

Meanwhile, in Pennsylvania, more than half the counties need to upgrade their equipment to comply with HAVA's requirements. But according to this report, a state judge has ruled that voters need to approve the purchase of new equipment. This seems very strange to me, given that they're under a federal mandate. Apparently, the only choice that counties have will be to use paper ballots in the upcoming election -- unless it's reversed on appeal or there's a contrary federal judgment.

All and all, it's a lousy time to be an election official. And it's looking doubtful in a number of states that HAVA's requirement of accessible technology for disabled voters this year will be satisfied. Don't be surprised to see disabled voters going to court to protect their right to vote independently.

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Moritz College of Law The Ohio State University