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
Thursday, January 19
Comply with HAVA, or Prepare to Be Sued
The nation's two largest states appear to have chosen the latter option.

In California, county registrars are becoming increasingly nervous about whether they'll be able to comply with HAVA's requirement that every polling place have at least one voting machine accessible to disabled voters in this year's election. The San Jose Mercury News has this report. The failure comply arises from the fact that the Diebold system that many counties intend to use hasn't been certified by the California Secretary of State, Bruce McPherson, who's quoted as saying: "If somebody should file a lawsuit against the county, ... this Secretary of State's Office is going to be foursquare behind them in defending that position.'' But I don't think either the county or the state would have to have a leg to stand on. HAVA is unambiguous in requiring that every state have accessible equipment in place by January 1, 2006 (actually, the original deadline was 2004 but California and most other states got an extension).

Not to say I told you so, but this is something I warned about many months ago -- see "A California Calamity in the Making" and "HAVA's Ticking Clock." California's impending failure to comply with HAVA is a direct result of the state's ill-advised decision to require a contemporaneous paper record, aka "voter verified paper audit trail" or "VVPAT," before there was any accessible system that generated such a record. In other words, this state-law requirement has impeded compliance with federal-law disability access requirements. As any first-year constitutional law student knows, where there's a conflict between state and federal law, the Supremacy Clause requires that state law yield. So if in fact California and its counties don't get new voting equipment in place by the 2006 primary, it's hard to see how they can do anything but throw themselves at the mercy of the court.

The second-largest state isn't in any better shape. As the Albany Times Union notes here, New York is at risk of being sued by the U.S. Department of Justice and losing some of its federal funds under HAVA. As in California, the main problem has to do with voting machines. In New York as in California, the transition to new equipment is impeded by a state law that doesn't make much sense. In New York, it's a state law requirement that voting machines be "full face" -- i.e., listed all at once on a single page. Modern electronic voting machines typically don't display all choices at once, but instead allow voters to scroll through the different races. New York's full face requirement is antiquated, and one wonders why the legislature hasn't repealed it.

Meanwhile, one of the country's smallest states, South Dakota, appears to be doing better. This story from the Rapid City Journal reports that the state is in compliance with another 2006 requirement of HAVA: that statewide registration databases be in place. But even in South Dakota, there's a hitch. HAVA requires that Social Security numbers (actually, the last four digits of the SSN) or driver's license numbers be "matched" with Social Security or motor vehicle records. The problem is that officials can't do a match of voters who've moved to South Dakota from other states, and still have their old state licenses. Those other states either can't or won't provide this information. So what's the state supposed to do? They're asking those drivers who still have out-of-state licenses for their SSNs. The trouble with that is that voters aren't required to have a SSN in order to vote. What the state should do, in my opinion, is to allow those folks to register and assign them a unique identifying number, as HAVA provides, even if that means that the number can't be "matched" with other agency records.

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Moritz College of Law The Ohio State University