On December 20, 2007, in response to a Justice Department suit against the New York State Board of Elections for non-compliance with the Help America Vote Act (HAVA), a federal judge in Albany gave the State Board until January 4, 2008 to submit a plan to achieve full HAVA compliance and recognized that full compliance might not occur until 2009. The court also recognized that the plan would be based on one proposed by Stanley Zalen (Democratic Executive Director of the State Board of Elections) that provides for one disabled accessible ballot marking device in every polling station for September 2008.

The only reason the Zalen (or Democratic) plan hasn't been agreed upon by the election commissioners, and couldn't be today, is that the "Republican co-executive director, Peter Kosinski" has decided not to cooperate in developing any plan at all, which may still be the case on 1/4. The Republican's failure to come up with a plan of their own that provides dates for compliance was frowned upon by both the Judge and the DOJ counsel. If the Repubs don't sign onto Zalen's plan by 1/4, the Judge might consider appointing a special master (possibly Governor Spitzer), or even throw the executive directors in jail until they reach agreement, though that is highly unlikely. The Judge expressed no interest in supporting the dysfuntionality of the State Board by directing adoption of a specific plan of action, giving it what may be its last opportunity to create one.

In an interesting media note, NY1 reported this story as Judge Orders State To Install Electronic Voting Machines, and both the title and story content imply that that hackable, untested machines could be forced on the state for the 2008 elections. However, the judge has ruled simply that a plan must be in place by 1/4/08, which could work in the state's favor by providing an impetus to defeat Republican obstructionism on this issue.

Full text of the DOJ complaint is HERE. The minutes for the hearing follow after the fold...

U.S. District Court

Northern District of New York - Main Office (Syracuse)

Case Name: United States of America v. New York State Board of Elections et al

Docket Text:

Minute Entry for proceedings held before Judge Gary L. Sharpe : Motion Hearing held on 12/20/2007; Appearances Made: Brian F. Heffernan, Esq., Paul Collins, Esq., Todd Valentine, Esq., Allison Carr, Esq., Jeffrey Dvorin, Esq., Bruce Boivin, Esq., Peter Clines, Esq., and Lori Barrett, Esq.; Court discusses procedural history of the case; Court gives analysis of the case. Court discusses pending matters before the court; court discusses amicus applications; Court grants all motions to file amicus brief; Court discusses parameters of the amicus brief; Court will not accept any other motions without brief; if motion filed with brief will take on submit; any in non-compliance will be sua sponte denied; Court turns to the intervention motion by Nassau County and lumps in the State Board of Elections motion. Atty. Clines discusses position of Nassau. Court inquires of letter by other counties. Atty. Clines discusses number of vote of their county regarding other counties. Discusses compliance; Discusses causation. Court discusses causation. Atty. Clines discusses legal duty. Court inquires why State Board cant take Nassaus view into consideration. Atty. Clines discusses order and right for a need to appeal. New York state cant thumb nose at HAVA; discusses loss of money for boards; requires to hand up state transcript. Court DENIES request and directs counsel to summarize. Atty. Clines summarizes transcript for the court. Atty. Clines discusses standard met for automatic intervention. Atty. Valentine discuss difference in counties; discusses why counties should now be joined as parties in the litigation. Court states counties must implement what the State Board tells them; need to pick machine certified by State and then implement that discusses the control of the money. Atty. Valentine states in control of the Comptroller; Discusses need for the counties; discusses why their motion was brought at this time; adopted standards. Court inquires of legal interest of county boards and need to be parties. Atty. Valentine states mechanism in place for the state to enforce the order of this court; expedient to bring in this action instead of bringing a state court action; only tool is a judicial proceeding; other issues to be resolved; Court discusses remedial order and have not complied. Cant submit a plan. Atty. Valentine states has reiterated position to comply; there have been steps backwards; tried to make explanation on what has transpired; have set high standard for voting systems; time frames by Congress was unrealistic. Court discusses 49 other states have complied. Court discusses issue of New York. Atty. Valentine states enforcement is for basis of motion to join; each county is in a different position. Atty. Heffernan discusses the motions to intervention and to join. Discusses case law that the State Board oversees the County Boards; Counties are not necessary parties; If all counties were added the case would be unmanageable. Discusses federal money in the State account to comply with HAVA; it is state money and not county money; Court states for reasons articulated by the federal government, the motions to intervene and the motion to join is DENIED. Court turns to the enforcement action; Court discusses State Board in regards to prevention under State law; federal law preempts state law; Atty. Dvorin discusses the remedial order; attempt to come up with solution and a plan; discusses independent testing agency issues; Board has made tremendous progress in recent months; process was expedited through other state agencies; Board indicates compliance in 2009. Court states the State has to resolve the law under HAVA; federal law preempts state law; Atty. Dvorin discusses the purpose of the State Board of Elections. Court discusses states position is to give time to implement. Atty. Dvorin states federal law preempts in this area; Court inquires of State on what enforcement it has if the State Board does not do its job. Atty. Dvorin discusses state board election and appointing process; discusses compliance is not issue; it is when to get in compliance. Court states compliance was January 1, 2006. Atty. Dvorin discusses implementing HAVA; Court discusses compliance, submitting plans and implementing plans. Atty. Dvorin discusses mindful of implementing plan under HAVA; Court inquires who represents the Comptroller. Atty. Dvorin states to an extent represents as through the State as an official. Court inquires from legal standpoint where state board is paralyzed under some obligation. Atty. Valentine discusses statute and process with bipartisan board; statute has a default mechanism; open to an enforcement action; in the process now; trying to meet federal standards first. States none of the machines in US have been certified and meets federal standards. Discusses plan b machine to start testing in 10-14 days; have a testing agency; have bid for voting machines; ready to contract with vendors in 1st quarter of 2008; began initial analysis to test the machines. Court takes recess. Atty. Heffernan discusses HAVA non-compliance. Court discusses issue raised regarding appointment of special master. Atty. Heffernan discusses accessibility; Court discusses submission of plan; court inquires of federal government in regards to enforcement. Atty. Heffernan states government has been monitoring. Atty. Valentine states elements of steps not issue but it is the dates. Court inquires of State Board if time requested to submit a plan. Atty. Valentine discusses elements in Zalen plan; necessary steps; only issue and will accept time to make sure dates are accurate; ask until January 4, 2008 to comeback with details; time to assured accurate dates on testing; delivery dates; when delivered to the counties; Atty. Collins would urge the court to adopt Zalen plan with verification of dates by Atty. Valentine Atty. Heffernan states does not have problem with January 4, 2008. Have the board come in with plan review for sufficiency. Discusses letter from county board members yesterday. Focus on accessibility; discusses HAVA compliant machines; Court will convert Nassau Countys motion to an amicus brief for consideration. Need to move this process forward. Court inquires of Zalen plan from the federal government. Atty. Collins states Zalen plan has time frame for full compliance for 2009. Court states State Board of Election to submit a plan by January 4, 2008. Court is going to want position of the federal government and if further action is going to be required by the court. Atty. Heffernan states would like to have a conference. (Court Reporter Theresa Casal) Time: 9:00-11:45 a.m. (jel, )