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Last words on how New York state failed to live up to the HAVA Act

November 22, 2008
Adirondack Daily Enterprise

Before this column really gets going, I want to thank the Enterprise for contacting TLCIL regarding the difficulties some polling sites were experiencing on Election Day with the "new" machines. That call came at the perfect time and, hopefully, Independent Living's depiction and opinion about what happened on Election Day, not just here but all over New York state, helped the general public understand what the issues surrounding the "new" voting machines were all about but, if not...

(I've mulled over how to start this next paragraph for days. Should I be soft and sympathetic? Should I point fingers and name names? Or should I just tell it like I see it? I guess the answer is all in the way you read it. I'll let you know at the end which method I chose.)

As the media covered the problems encounter by voters using the "new" voting machines, which I will henceforth call BMD's (ballot marking devices) because that's what they are really called, some very important factors were left out. If I did not know what I know, I would feel oh so sorry for the various County Boards of Election. Boo Hoo! All the problems with the BMD's on Election Day, wah-wah! We don't trust the machines, we have to run tests on them periodically all year as part of routine maintenance, they're expensive, we need more training ... the list goes on and on.

Here's the lowdown on the BMD's. This was no surprise to the powers that be, believe me.

The Help America Vote Act was signed into law by President George W. Bush on October 29, 2002. Drafted (at least in part) in reaction to the controversy surrounding the 2000 U.S. Presidential Election, the goals of HAVA include replacement of inaccessible (that doesn't mean machines you can't get to, it means machines that cannot be used independently by ALL voters) voting systems, to create the Election Assistance Commission to assist in the administration of Federal elections and to establish minimum election administration standards. HAVA mandates that all states and localities upgrade many aspects of their election procedures including their voting machines, registration processes and poll worker training to ensure uniform compliance as well as accessibility for all voters. NYS received $221 million in federal funds to do this. The original date for implementation of HAVA for all states not submitting a wavier, which would change the date to Jan 1, 2006, was Nov 2, 2004.

In 2005, NYSBOE was sued by the Federal Department of Justice (DOJ), after the Board disregarded its directive to come into compliance with Federal and State voting rights law. SBOE eventually agreed to an interim HAVA plan, which, while falling short of full compliance, enabled some New Yorkers with disabilities to vote privately and independently for the first time.

In early March 2006, the US Department of Justice (US DOJ) initiated its first suit under the Help America Vote Act (HAVA) and sued the State of New York in Federal District Court for violation and non-compliance of HAVA, seeking "to vindicate rights of disabled voters." New York advocates supplied US DOJ with significant evidence for the suit. You can check out the legalese online:

Now, I'm leaving out a whole host of very disturbing events. Like NYS Board of Elections actually contemplating how many more voters, who previously could not cast a private ballot independently, would do so. There were comments made right in our own backyard by local BOE's like (and this is true and it absolutely kills me) "People with disabilities prefer to vote by absentee ballot". Hmmmm, and you know that how?

On Election Day 2006, "Plan B" was implemented throughout New York State, providing a modicum of accessibility (i.e., at least one location per county) where a polling site would have ballot-marking devices available. People wishing to use the accessible machines would have to travel , in most cases, outside their normal voting district to vote. Plan B also provided that all polling places would have at least one accessible machine for the Presidential Election in 2008. (If you're keeping score Plan B had been in place for 2 years prior to the 2008 election and 4 years had passed since the original compliance date) By the next election, I believe in 2009 but I KNOW by the next Presidential Election, all over the "old" machines will be gone. If it's 2009, New York state will have taken 5 years longer than every other state in the country to comply with the Federal Law. Heaven help us if it turns out to be 2012.

Now, there are a few little things I need to get in here before I wrap this up. Remember I did promise not to write about voting again for a long time. HAVA and the ballot marking devices were not created to allow voters with disabilities to vote. The machines were redesigned as a result of the infamous "hanging chads". So, why the disability angle? The old voting machines were made before the American's with Disabilities Act. Apparently, they were also designed before anyone realized the very sly way people with disabilities were being discriminated against. Let me put it this way, it is illegal and discriminatory to make something for public use that not everyone is able to use. Period. Why don't we split the difference and use the lever machines and the BMD's? Gee, why don't we just stand around and see who is in the "cripple" or "retard" line, too? (Please don't freak out on me about the "cripple/retard" example. I'm just making a point that you know as well as I do, is out there) Voting in a different room, or on a different machine, or standing in a different line is discrimination. Why? Because we don't have the choice of what line, what room, or what machine we use to vote. Either we all get a choice or no one does. All for one and one for all.

I hope this gives you some kind of an idea of the level of frustration this foot dragging process has caused. When speaking with the local poll workers and Boards of Election, it would appear that this BMD issue just fell out of the sky. It didn't. It began in 2002 and wasn't started by voters with disabilities, although it may seem that way. Do we benefit from it? Not really, we just gain the ability to cast a private, independent ballot like everyone else.

By the way, that was as much "soft and sympathetic" as I could muster.



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