ACCESSIBLE VOTING RIGHTS CRISIS IN NEW YORK

For immediate release:                                                     For more information, contact:
January 31, 2006                                                               Brad Williams (518) 427-1060
 

Introduction

On January 10, 2006, the U.S. Department of Justice (DOJ)/Civil Rights Division wrote a letter to the State of New York to announce their intent to sue them in Federal Court to force mandatory compliance with the federal Help America Vote Act (HAVA) of 2002. As noted in this letter, New York has made very little progress toward the various election reform improvements. In fact, Assistant Attorney General Wan J. Kim stated at the end of the fourth paragraph,

"...it is clear that New York is not close to approaching full HAVA compliance and, in our view, is further behind in that regard than any other state in the country."

Since the U.S. DOJ will most likely demand injunctive relief in the form of a pre-filing memorandum of understanding with the State of New York , it will be crucial for New Yorkers with disabilities to influence the content of such an agreement so that the parties take our concerns into account. We also plan to compile a detailed history of the efforts of NYSILC and other disability rights organizations between 1999-2006 to ensure proper compliance with HAVA and other federal and state laws. This body of information will demonstrate the enormous and regular efforts by people with disabilities in New York to constructively engage in the process. It will include any or all of the following: position papers, testimony, reports, surveys, draft bill language, decisions and/or affidavits from lawsuits, media coverage, speeches, and personal accounts and documents from various events and activities. It will reveal, in contrast, how the state has ignored these efforts, resulting in ridiculously long delays, and, ultimately, the denial of the rights of many New Yorkers with disabilities of their fundamental right to vote privately and independently.

The effort to complete this publication may take several months. As a result, this open letter is needed to communicate the various voting access concerns and needs of New Yorkers with disabilities. U.S. DOJ must be provided with comprehensive information that allows it to fully understand the situation in New York , appraise the information and the solutions presented to the state by the disability community, and be compelled to incorporate these recommendations as provisions within any agreement it may enter into. The lack of good faith displayed by many state lawmakers and staff to address polling place and voting machine access is expanded upon below.

Viewed in historical context, the situation in New York is an embarrassment that will be added to the long list of voting rights disgraces that have occurred on the national level against non-landowners, Africans Americans, people of color, women, and young adults, and people with disabilities.

New York State lawmakers and their staff who refuse to accept their moral and legal obligation to provide full access to voting machines, the ballot, and polling places are smugly sacrificing the voting access needs of people with disabilities in New York for the shallow and short-sighted purposes of perpetuating incumbencies, preserving House majorities, and maintaining staff jobs. This practice must stop.

Polling Place Access

Advocates teamed up with eighteen Assistant Attorney Generals from across the state to conduct surveys on Election Day 1999 that exposed a widespread pattern of inaccessible polling places. State Attorney General Eliot Spitzer's Office then worked with the Catskill Center for Independence (CCFI) to file suit in Federal Court against three upstate counties over the lack of polling place access. Otsego County took the honorable path and entered into a consent decree to remedy the situation. The other two counties fought the case in court. In February 2000, advocates packed an Albany courtroom in support and were ecstatic days later when Federal District Court Judge Howard Munson delivered a positive decision in favor of full polling place access.

Advocates had reason to celebrate. NYS Election Law has access requirements, but provided a "waiver" process so that a locality could avoid making a site accessible. Instead of giving specific details describing how to make a polling site accessible, it gave explicit instructions of how to avoid making a polling site accessible through the waiver process. The waiver process perpetuated barriers rather than trying to remove them.

In addition, as addressed in the February 2000 Federal District Court decision, an absentee ballot was an available choice of any citizen, but neither the preferred voting method nor accommodation selected for a person with disability to vote. This method is NOT equal. How is it "equal treatment under the law" to force a class of citizens to vote by absentee ballot by not providing access to the polls, and then further limiting the likelihood that their votes would be counted by saying: 1) We will promptly count your vote if the number of absentee ballots exceeds the margin of victory by machine vote, and 2) We are going to scrutinize the legitimacy of your ballot and possibly toss it out. The recent vote count for the 35th Senate District is a perfect example of this concern. Approximately 500 absentee and affidavit ballots were challenged. The incumbent won by 17 votes. When races are this close, it is essential to respect and count every vote.

Despite the Americans with Disabilities Act (ADA) of 1990 and the February 2000 Federal District Court decision, New York State chose not to change the outdated polling place access provisions in its election law. By the end of the 2005 legislative session, Assemblyman Kevin Cahill introduced and advanced a bill that would have made the technical language changes necessary to easily ensure the state's compliance with federal polling place access provisions. The state HAVA Conference Committee took his bill and added provisions to "extend the effective date" of HAVA compliance to December 31, 2006. This was done to add time for localities to apply for a new $20 million dollar access fund and make improvements in order to remedy inaccessible sites. In the "eleventh hour," the NYS Senate refused to agree to this compromise and marked up the bill with changes that eliminated the prospect of a meaningful polling site access bill. Assemblyman Cahill and advocates took action to voice their outrage over the Senate's bill.

The Senate polling place access bill replaced "waiver" language by "extending the effective date" of HAVA polling site access until July of 2007. This bill gave elections officials the opportunity to request further extensions beyond this date upon approval of the NYS Board of Elections. The Senate bill then narrowed the scope of who could challenge such an extension to only persons within the given election district. Fortunately, the bill was killed. This action maintained the status quo regarding the state's polling place access provision, which is illegal under federal law.

In addition to the ADA and the Federal District Court decision, the U.S. DOJ issued an opinion letter in the spring of 2005 related to a situation in Mississippi . The letter advised that polling place access is required under HAVA. It asked how someone could vote "privately and independently" at an accessible voting machine if they couldn't get through the door?

New York State must enter the 21^st century and eliminate its full-face ballot requirement! All polling places must be made fully accessible to individuals with disabilities.

Voting Machine Access

New York 's insistence upon keeping a full-face ballot format best typifies the illogical responses and actions of many state elected officials and their staff. The full-face ballot, developed at the end of the 19th century, is archaic and does not lend itself to prevailing technology. With the exception of the State of Delaware , which allows co-existence of both ballot options, New York is the only state left in the country determined to keep this outdated voting format, and they do it for reasons elected officials seldom discuss publicly.

Some elected officials will cite the fear of "fall off" as the overriding reason to stay with the full-face ballot. They want their name and office displayed on one ballot sheet along with all the other races. Otherwise, voters might purportedly lose interest by the time their contest is displayed on a multi-screen format. While this sounds plausible, new technology is structured to override this concern. In fact, federal law requires it by mandating that people review their vote before finally casting it. Also, a Missouri study showed that, contrary to some legislators concerns, a "full-face ballot" is one of the top factors leading to voter fall off. Finally, civil and voting rights laws such as the ADA and HAVA are not enacted to accommodate politicians, but citizens.

Over 200 New Yorkers with disabilities tested full-face and non full-face ballot machines at a New York City voting technology fair in the spring of 2002. The event was sponsored by the Manhattan Borough President's Office and the Center for Independence of the Disabled in New York (CIDNY). The report and findings clearly demonstrated that people with disabilities preferred the flexibility and options offered by non full-face ballot models. These features often made the difference in whether or not voters with disabilities were able to vote at all.

Our state elected officials and staff should be responsible to taxpayers by ensuring that they get the best value possible when counties purchase their new voting technology, and avoid delaying implementation that would put HAVA funds at risk. Full-face ballot models are more expensive, often twice the cost of non full-face ballot alternatives.

There are other cost and service factors to consider. Electronic voting machines cannot be stored in the same cold warehouses used for metal lever machines. They must be kept in a temperature-controlled environment. Non full-face ballot technology allows for smaller machines that would be less expensive to store. The state should not pass this increased cost to localities and taxpayers.

State lawmakers and staff should also be concerned that they are going to purchase what represents "prototype" technology. While numerous non full-face voting machines have been in production and used in different states for years, New York wants to invest in full-face ballot models that are not fully functional. This fact was recognized in both of the full-face voting technology surveys conducted by NYSILC at the NYSBOE Annual Conferences in 2003 and 2005. In one instance, a vendor said they would make the final changes when a contract was secured. This is like going into a car dealership and asking to test-drive a new car on display. The salesperson tells you this is not possible because they haven't installed the motor yet. However, when they do, the car will work great. Of course, they will install the motor for you if you pay for it in advance and agree to be on a waiting list.

Still another concern deals with the unknown production and delivery timetables of these products.

The US DOJ letter verifies that New York State is already in violation of HAVA. Will vendors be able to keep up with order demands and the proposed deadlines? It remains to be seen. In addition, New York State should realize that voting systems have a tendency to last several decades, with modifications. After the sale, production, and delivery occurs, how long will these vendors provide appropriate technical assistance, training and support for an outdated product line with limited distribution and usage across this country?

The new co-chair of the HAVA Conference Committee, Senator John Flanagan, did meet with disability rights advocates before the end of the 2005 legislative session. He agreed to some recommendations in the Assembly version of the bill, which was supported by advocates. Regretfully, the language in the new state voting machine law omitted a provision to allow for machine features that would increase font size, change text contrast, and provide the ability to navigate the ballot in a multi-screen format. In other words, it obligated the state to continue the exclusive use of only full-face ballot technology. In addition, it should be noted that NYSILC had to file an Article 78 against the NYSBOE in order to secure their representative to the Citizens Election Modernization Advisory Committee.

All voting machines in New York State must be fully accessible to individuals with disabilities.

Conclusion

The US DOJ must compel New York State to provide full access to its voting machines, ballot, and polling places in accordance with the federal Help America Vote Act (HAVA), the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and the 14th Amendment to the U.S. Constitution. No New Yorker with a disability should be denied full access to their fundamental right to vote "privately and independently" as an American citizen.

Since New York State has not been motivated to comply with HAVA to date, a strong enforcement provision must be added to any agreement. Even if New York commits to an agreement, there is no guarantee that they will honor it, rather than continuing the practice of avoiding and/or prolonging HAVA implementation. The enforcement structure should resemble the provisions provided in Title III of the ADA . Generally, it would provide for the following:

1) Private parties would be allowed to file lawsuits to obtain court orders to stop discrimination. Reasonable attorney fees would be awarded.

2) Individuals could also choose to file complaints with the US DOJ. The US Attorney General would have the authority to bring lawsuits in matters of public importance where a pattern of discrimination is alleged.

3) Suits brought by the US Attorney General may award monetary damages (not including punitive damages) and civil penalties. Civil penalties may not exceed $50,000 for the first violation or $100,000 for any subsequent violations.

4) In the instance of a third violation, the matter would be reported to the proper authorities to seek criminal prosecution as an E Felony. If convicted and found guilty, a repeat offender would serve 1-4 years in prison and subsequently lose their right to vote as an American citizen.

Respectfully,

Brad Williams

Executive Director

NYSILC