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
Friday, February 17
 
More on Pennsylvania Voting Machine Decision
As I noted in my last post, number of states are at risk of violating the Help America Vote Act's 2006 deadlines for the installation of disability-accessible voting technology and the replacement of punch card and lever machines, for those that accepted federal funds to do so. On Monday, a state court judge in Westmoreland, Pennsylvania issued an order that there must be referenda to approve counties' purchase of new voting equipment -- even though the state had previously given the counties advice to the contrary. Reports on the decision may be found in the Daily Item, Times Leader, and Morning Call.

These reports indicate that Judge Dan Pellegrini's ruling has thrown local election officials in the Keystone State into a tizzy. Pennsylvania counties have to replace their lever voting machines by the May 16 primary election. If they fail to do so, the state would be obligated to pay back the money it received under HAVA, on the condition that it replace its lever and punch-card voting machines by 2006. (The original deadline was 2004 but Pennsylvania, like most other states, got a two year extension.) The trouble is, it's impossible at this point to get referenda on the ballot that would allow the equipment to be replaced by May. And suppose the referenda fail? Then what? The state is, as you'd expect, appealing the ruling.

I've not yet been able to get my hands on Judge Pellegrini's order, but the Daily Item quotes it as saying: "All that HAVA does require is that a compliant voting system be used for federal elections ... the physical impossibility [of replacing old equipment] was created by not placing before the public a referendum as required by state law." That may be so. But the failure to comply with state requirements doesn't excuse the state or counties from their obligation to comply with HAVA. Federal law trumps state law -- it's called the Supremacy Clause. Thus, the fact that counties didn't follow the referenda process, even assuming it was required, isn't a good excuse for violating the requirements of HAVA now.

At least one county (Lehigh) is reportedly planning to go ahead with the purchase of new equipment, saying that federal law takes precedence over state law. With the qualification that there may be something going on here that I don't understand, that position seems to me quite correct.

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Moritz College of Law The Ohio State University