Even While the Feds Own Inability to Meet HAVA Reqiurements Continues
EXCLUSIVE: Complete Letter from DoJ's Civil Rights Division to NY AG Elliot Spitzer
By Brad Friedman on 1/12/2006, 4:46pm PT  

Additional Reporting by John Gideon

On Tuesday, the U.S. Department of Justice threatened in a letter to sue New York state over its failure to modernize its voting system in compliance with the Help America Vote Act (HAVA) of 2002. The BRAD BLOG has obtained a copy of the complete letter sent from Asst. Attorney General Wan J. Kim, of the DoJ's Civil Rights Division, to NY's Attorney General Elliot Spitzer and General Counsel Todd Valentine.

In the letter, Kim informs the state that he has received authorization to file "a lawsuit on behalf of the United States against the State of New York as well as the New York State Board of Elections, et al."

That, despite the Federal Government's own egregious failures to fully comply with HAVA requirments. The lawsuit against the "blue state" would be the first attempted action taken against any state by DoJ for failing to meet the requirements of HAVA since one of its major deadlines passed on January 1 of this year.

The complete letter from the DoJ is posted at the bottom of this article.

As reported by the New York Times today the DoJ has accused New York of being further behind than every other state in complying with new guidelines laid out by HAVA:

The state has yet to decide what kind of new voting machines it will certify, leaving many local elections boards in uncertainty as they try to modernize their voting systems in time for next fall's primary elections. The state missed the Jan. 1 deadline for creating a statewide database of registered voters, as required by the federal Help America Vote Act.

New York is behind all other states and territories in deciding how to spend its share of $2.3 billion in federal aid to modernize voting machines and other elections technology. So far the state has received $220 million to replace its 20,000 aging voting machines, train local election officials to use the new machines, and create the voter database. The money is unspent and collecting interest, officials say.

A Justice Department letter told state officials this week that it had authorized a lawsuit against New York for failing to comply with the law. The letter said that the department hoped to settle the matter by negotiating a court order with the state instead going to court, but that "we are prepared to file a complaint if the matter is not resolved expeditiously."

Wan J. Kim, the assistant attorney general for the Justice Department's civil rights division, wrote in the letter that "it is clear that New York is not close to approaching full H.A.V.A. compliance and, in our view, is further behind in that regard than any other state in the country." A copy of the letter was given to The New York Times by someone who believes the state has been too slow to overhaul its system.

The question now, for Election Reform advocates, is whether Elliott Spitzer, the aggressive New York State Attorney General, will stand up to this threat and point out to the DoJ the extraordinarily lax execution of HAVA by the federal government themselves! Given the Feds' own lack of compliance of the disastrous "Election Reform" bill hastily created in the wake of the 2000 Florida Election Debacle, the ironies here are many. The legislation itself, as revealed in a recent BRAD BLOG exposé, was apparently financed by voting machine vendors such as Diebold, and other shady characters named in the Jack Abramoff scandal.

In a report titled Is HAVA Being Abused? Part II; Good for the Goose; Why Not for the Gander?, written by Ellen Theisen in 2005, the then Executive Director of VotersUnite.Org exmined the Feds' own failures in implementing the flawed bill, including George W. Bush's own apparent violation of the law...

In spite of the federal government's repeated failures to meet statutory deadlines imposed by the Help America Vote Act of 2002 (HAVA), the U.S. Department of Justice has declared that the States must meet their HAVA deadlines, even without the HAVA-mandated research and guidance intended to help the States comply with HAVA wisely.

HAVA requires the Federal Election Assistance Commission (EAC) to develop guidance on voting systems standards by January 1, 2004. The standards were intended to guide the States as they upgraded their election equipment to meet the HAVA Section 301 requirements by the January 1, 2006 deadline.

In violation of HAVA, the President delayed the appointment of the members of the EAC for more than nine months after the HAVA deadline — two weeks before the statutory deadline for providing the voting system standards. Furthermore, HAVA authorized up to $10 million for each year from 2003 to 2005 for the EAC to carry out its duties. However, only $2 million was appropriated for 2003 and the EAC was not formed in time to use the funds. Only $1.2 million was appropriated for 2004. "The total operating budget for Fiscal Year (FY) 2004 was just $1.2 million."

Complaints about the failed federal implementation of HAVA, and their delinquency in properly funding the EAC, were reported last April by its outgoing original Chairman, the Republican minister DeForest Soaries.

As reported on The BRAD BLOG at the time, Soaries spoke to the AP about the many problems at the EAC:

"All four of us had to work without staff, without offices, without resources. I don't think our sense of personal obligation has been matched by a corresponding sense of commitment to real reform from the federal government," Soaries told The Associated Press.

Soaries is a Republican who was the White House's pick to join the Election Assistance Commission, which was created by the Help America Vote Act of 2002 to help states enact voting reforms.
...
Soaries and the other commissioners complained from the beginning that the commission was underfunded and neglected by the federal lawmakers who created it.

Additionally, Soaries told AP as early as 2004, prior to the Presidential Election, that their ability to implement HAVA was sorely lacking. "If this were a foreign country with the exact same setup,” he said, “we'd be highly critical of their understanding of democracy."

In the meantime, Election Reform advocates in NY, New Yorkers for Verified Voting and the NYS League of Women Voters, have called on the state to immediately adopt an optical-scan voting system for the state. VoteTrustUSA.Org reports:

"By moving quickly to certify precinct based optical scan [PBOS] voting systems which have already been federally approved New York State can be in full compliance with HAVA requirements." said Aimee Allaud, Elections/Government Specialist of the League of Women Voters of New York State. "PBOS voting systems with the addition of a ballot marker will provide secure, accurate, recountable and accessible voting. DREs currently being demonstrated in NYS cannot, at present, meet that standard."

"The impending action by the Department of Justice to enforce HAVA compliance makes it urgent that New York adopt optical scanners now." said Bo Lipari, Executive Director of New Yorkers for Verified Voting. "If the DOJ action results in New York's loss of HAVA equipment funding, we would still be required to replace lever machines. But without HAVA funds, New York's taxpayers will pay the full purchase cost out of their own pockets. Adopting optical scanners rather than touchscreen voting machines will save New Yorkers over $100 million dollars in acquisition costs. There are many excellent reasons for adopting scanners. More than ever, the scanner alternative has become a no-brainer."

The complete letter from the Dept. of Justice to New York state follows…