We lost a Big One in PA today...And I can't figure out how...

[Junkdrawer]

The Pennsylvania Constitution says that only The Voters can change the type of machine used to record their vote.

The US Constitution delegates the manner of elections to the States.

So tell me, how can the PA Supreme court find that the PA Constitution is subservient to a flawed interpretation of HAVA????

HARRISBURG, Pa. - The state Supreme Court ruled Thursday that a county may replace its mechanical lever voting machines without voter approval in a case that pitted new federal election laws against the state constitution.

The ruling eases concerns about possible disruptions in the planned upgrading of voting systems in dozens of counties before the May 16 primary election.

The decision, which overturned a lower court, was announced in a one-page order that promised a subsequent opinion explaining the justices' reasoning.

The lower court judge - Commonwealth Court Judge Dan Pellegrini - said the 2002 federal law that requires many counties to upgrade their systems before the primary affects only federal elections, while the state constitution requires voters' approval for any change in voting systems.

....

http://www.phillyburbs.com/pb-dyn/news/103-03022006-620337.html

The damned thing is that they haven't said HOW they came to that decision. I guess on news-dump Friday we'll find out...maybe.

[Greeby]

1. Maybe PA's Constitution

Is "just a god-damned piece of paper" too :shrug:

[Land Shark]

18. All this means is that INJUNCTIVE relief is not available

(unless and until the full opinion says more)

The law presumes that actions for damages are available, and one has to show that there is "no adequate remedy at law" before any injunctive relief can be granted.

THe PA Supreme court could be reversing on that ground alone, and on the wording of the opinion that seems like the most likely reason.

SO, what's important is that the supreme court of PA is NOT saying that there didn't need to be an election (NOTE THE MEDIA IS MORE THAN HAPPY TO REINFORCE THE MESSAGE OF FUTILITY THAT'S NOT THERE AND TO ADOPT THE GOVT TALKING POINT THAT THERE DIDN'T NEED TO BE AN ELECTION).... it's only saying that you can't use injunctive relief to stop it. You may well be able to sue to have the contract found to be void, as I sued for at www.votersunite.org/info/lehtolawsuit.asp (decisions pending)

Also, this is not necessarily, as suggested below, a PA Supreme court finding that HAVA preempts state elections....

Prehaps there are unique PA considerations that go beyond the Pelligrini trial court opinion. but as a non-PA attorney, this is the clear impression I get.

[babylonsister]

2. Rec'd for disgust. nt

[Fredda Weinberg]

3. Federal law trumps state constitutions

From California's

If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

http://www.leginfo.ca.gov/.const/.article_1

You'll find clauses similar to this one in just about every state's constitution.

[Junkdrawer]

4. ..and so Federal Law can revoke a clear section of the US Constitution...

without a Constitutional Amendment???

[Fredda Weinberg]

5. That's federal v federal

We were talking about federal law trumping a state's constitution.

[OnTheOtherHand]

9. are you suggesting that HAVA is unconstitutional?

Not likely, I think. Article I, Section 4 says, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." That seems to give Congress some say in how federal elections are conducted. Do you have something else in mind?

I've skimmed Pellegrini's memorandum opinion, and it seems that the most interesting question is whether the 'voting system' is unitary. The state and Westmoreland BoE argued, in effect, that since the Pennsylvania provisions giving electors control over what voting equipment to use was overridden by HAVA for federal elections, it was no longer in force. Pelligrini reasoned that the BoE could comply with the HAVA mandate by adopting paper ballots for federal elections, without changing the system for state and local elections. The BoE said, 'That's nuts, to mandate two voting systems.' The judge retorted, 'Uh, folks, you had a couple of years to think about that problem and put it to the voters.'

As I understand it, the BoE is no more authorized under PA law to use paper ballots than it is to buy electronic voting machines. So it is a sticky legal issue. And here is what we have from the PA Supreme Court:

AND NOW, this 2nd day of March, 2006, the portion of the order granting injunctive relief is hereby VACATED. The portions of the order granting relief upon the action for Declaratory Judgment and the Complaint in Equity are hereby REVERSED. Opinion to follow.

[Junkdrawer]

10. But did HAVA mandate or did it offer funding?

see this post:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=560951&mesg_id=561542

Also, we have conflicting positions as to what does and doesn't meet HAVA requirements:

Federal official says lever voting machines are OK

HARRISBURG - A federal election official said that lever voting machines do not necessarily have to be replaced under the 2002 Help America Vote Act, a departure from what Pennsylvania elections officials have been telling reluctant counties.

Election Assistance Commission spokeswoman Jeannie Layson said states must require that the disabled have the ability to vote, and that machines meet certain auditing and accuracy requirements. But there's nothing in the act saying that decades-old lever voting machines must go, she said; that's a decision for the states to decide.

"There may be a way that states can continue to use the systems they have as long as they comply with" what's in the act, Layson said.

....

http://www.phillyburbs.com/pb-dyn/news/111-08282005-533454.html

That's what I meant by:

"So tell me, how can the PA Supreme court find that the PA Constitution is subservient to a flawed interpretation of HAVA????"

[OnTheOtherHand]

11. it does both (but what it mandates is indeed debatable)

Section 301 begins: "Each voting system used in an election for Federal office shall meet the following requirements:"

Section 301 nowhere bans lever machines. It does require a "manual audit capability" -- frankly, I think the language of that bit is so muddy that you should expect reasonable people to disagree over whether lever machines can meet it. 301(a)(2):

Audit capacity.--
(A) In general.--The voting system shall produce a record with an audit capacity for such system.
(B)(i) The voting system shall produce a permanent paper record with a manual audit capacity for such system.
(ii) The voting system shall provide the voter with an opportunity to change the ballot or correct any error before the permanent paper record is produced.
(iii) The paper record produced under subparagraph (A) shall be available as an official record for any recount conducted with respect to any election in which the system is used.

And it requires that disabled accessibility be provided "through the use of at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place." Whatever that means.

Interestingly, Pellegrini's memo of decision states, "It is undisputed that the current method of voting in Westmoreland County does not comply with HAVA." We can infer that Pellegrini concluded that paper ballots could qualify, but lever machines -- or lever machines alone -- could not.

Text of HAVA at http://www.fec.gov/hava/law_ext.txt
Text of Pellegrini at http://www.aopc.org/OpPosting/CWealth/unpublished/18MD06_2-13-06.pdf

Note, again, that adopting paper ballots to comply with HAVA hasn't been approved by the voters of Westmoreland County either.

(EDIT) I had to post and reboot because my keyboard locked! Anyway, I don't think the courts have sorted out yet just what HAVA 'really says' about lever machines. As a New Yorker I am very interested in how that turns out.

[Junkdrawer]

12. Thanks. Your information is very helpful..

Currently, lever machines are checked manually and an inspection report is made before and after the election. Seems to me that that should meet the "manual audit capability".

Now, more troubling is the claim, made by the State in the Westmoreland case, that you can't have a separate method of voting for the disabled and for non-disabled voters. It seems that HAVA's (sole??) mandate allows for mixed methods, but the State was anxious to disallow this.

Guess we'll have to wait to read the court's ruling.

[OnTheOtherHand]

13. two more things

(1) Here is an EAC advisory from last September on the meaning of the "manual audit" requirement and why lever machines don't seem to meet it -- http://www.eac.gov/docs/EAC%20Advisory%2005-005.pdf . Note that this advisory came after the story you linked to. However, an EAC advisory won't necessarily hold up in court. (I am not a lawyer!)

(2) I don't think the state compared disabled and non-disabled voters -- it argued that there shouldn't be a different system for federal and state/local elections, one that would require all voters to vote twice. Whether there should be a separate method for disabled vs. non-disabled voters is an interesting issue, but I'm not sure it came up in this context.

[Junkdrawer]

14. Damn. Why don't they just come out and say it:

"If there's no vendor hackable system between the voter and the vote count, said system does NOT meet HAVA requirements."

[kster]

7. Well thanks, that makes me feel so much better

:wtf: KICK-N-RECOMMENDED..nt

[demodonkey]

16. The problem is they COULD have held the referendum and still complied...

...with HAVA.

Our Dem-controlled Department of State didn't certify its first machine until August and was still examining machines for certification in January --AFTER the HAVA deadline. (In fact there is one machine counties want to buy that is STILL not examined for certification and our Primary is May 16.) Counties bowed to the pressure of the "big three" Diebold, ES&S, and Sequoia -- and with the Department of Justice threaten to sue and take away the HAVA money, the pressure is on.

Our Governor and is Secretary of State SAY they are for accurate voting, etc. but do they really get it about how serious this situation with paperless, unverified machines really is?

Democrats -- in PA and everywhere -- better wake up and smell the coffee.

[Junkdrawer]

17. In 2004, a buddy of mine got on the HAVA advisory committee...

he's an advocate for the disabled, so they thought he was a sure thing to support the new machines. When he got the committee to agree that voter verified paper ballots were necessary, Cortez refused to meet with them (he sent a secretary to one of their meetings to get their findings).

IMHO, Cortez is part of the problem.

[Bill Bored]

21. Gee let's see, a State Constitution has Equal Protection/Due Process

and what do you know? SO DOES THE FEDERAL CONSTITUTION!

So if the 2 Constitutions agree, I guess that makes HAVA the odd man out, don't it?

[Bill Bored]

22. Excuse me!

But you are taking this completely out of context.
This only refers to the following Section of CA's Constitution:

"SEC. 31. (a) The State shall not discriminate against, or grant
preferential treatment to, any individual or group on the basis of
race, sex, color, ethnicity, or national origin in the operation of
public employment, public education, or public contracting."

In other words, if the US Law says we should have some sort of affirmative action in public employment, etc., this SECTION of the state Constitution may be trumped. BUT THAT'S NOT THE WHOLE STATE CONSTITUTION now, is it?

You then go on to suggest that this applies to every other state Constitution? Give me a break.

HAVA may very well be found to be unconstitutional, but it's more likely that a proper non-vendor-driven interpretation of HAVA will simply say that most of it is optional.

[demodonkey]

6. Lead plaintiff here. We are waiting for the judges' opinion.

That's the only way we will know.

[Junkdrawer]

15. If or when it comes in, it should appear here:

http://www.findlaw.com/11stategov/pa/2006_03pa.html

[jarnocan]

8. so sad- more to do

http://www.icountcoalition.org/?tr=y&auid=1458428 please verifiable elctions are what counts!

[Bill Bored]

19. Levers

OK, this view isn't too popular with some verified voting activists but fortunately, this is DU, and we can usually say what the f#@k we want here (exit poll fanaticism notwithstanding). And desperate times call for desperate measures.

The reason why levers are legal under HAVA is simply that HAVA Sect. 301 is so poorly written that levers comply with EVERY aspect of it except the Accessibility requirement, and THAT only applies to ONE MACHINE PER POLLING PLACE -- NOT PER PRECINCT.

The error rate spec referred to in Sect. 301 does not apply to lever machines. (Look it up in the Voting System Guidelines.) It's like saying SUVs have to get the same gas mileage as cars. Well they don't, do they?

The HAVA paper audit trail does NOT have to be voter-verified.

The paper must be produced by the voting SYSTEM, which Section 301 defines as going WAY beyond just the voting MACHINE. So a poll worker writing down lever machine results on a piece of paper is complying with the manual audit requirement.

Nowhere is there a mention of a PRINTER in HAVA Section 301.

Overvotes are not allowed on lever machines.

The voter can verify the ballot before casting it, and change it as many times as he or she wants to on a lever machine.

DREs, on average, have higher residual vote rates than lever machines.

HAVA specifically mentions lever machines in Sect. 301 where the requirements are listed.

Accessibility can be provided by an additional machine such as a ballot marker, but this does NOT mean the lever machines have to be REPLACED.

States have to return HAVA money for precincts that don't replace their lever machines, but this does NOT mean the lever machines have to be REPLACED.

The EAC has no authority to make law or regulations. So if they say there are no lever machines allowed, it is simply their OPINION.

They also say there don't have to be VVPATs, that it's OK to have DREs fail in high numbers on Election Day (based on their pathetically low reliability standard in their voting systems guidelines), and that it's OK to give out no-bid contracts to the guys who write the voting system standards so they can get paid with MY f#%king taxpayer money to edit their own f%^king work! See: http://www.epic.org/foia_notes/note11.html

So the EAC can stick their opinions where the sun don't shine, or for that matter, FLORIDA too!

If the DoJ says we have to replace lever machines, they are simply making a legal argument. A court will decide if they are right or wrong, but anyone reading HAVA, failing the passage of a bill such as HR 550, cannot say with a straight face that it rules out lever machines.

Clearly Junkdrawer, the state of PA is in deep shit though.

You have Democrats like the this Cortes SoS who are certifying machines that can't be audited.

You have machines being certified that don't count votes correctly during their state certification test.

They use the excuse that VVPATs violate voter privacy even though there are ways to randomize the VVPATs which do not allow them to be associated with individual voters.

The VVPAT can be cut and dropped into a ballot box.

The voters can randomly use more than one DRE at a polling place so their VVPATs can't be associated with them. This would even allow Diebold's toilet paper VVPATs. But even that is better than NO VVPAT at all, as long as there's a LAW to force the paper to be loaded into the thermal printer with the right side facing the print head! And of course there needs to be random audits and recounts when necessary.

People more clever than I can think of more clever ways to make VVPATs anonymous, but to use this red herring argument that VVPATs violate voter privacy, as PA has done, to justify machines with no independent audit capability is clearly a case of the Democrats caving in to pressure or other inducements from some vendors who don't want independently auditable machines.

I don't know where PA's Republicans stand, but it's not pretty when the Democratic party, that has historically protected voting rights, abrogates this responsibility in favor of election privatization with machines whose results can not be independently confirmed.

Where are those VVPAT bills in your legislature? Why haven't they been passed?

I am disgusted by the news from the Keystone state at the moment. Can't they read the fucking law, or the handwriting on the wall for that matter?

Rant over. Back to work everybody, nothing to see here.

[Bill Bored]

20. Oh, and another thing....

...nothing in the previous post is meant to take anything away from the brave PA patriots who are trying to avert this catastrophe! They are the best!