AAPD vs vMcPherson

As Dan Tokaji and Cindy Cohn point out, a lawsuit was filed on Tuesday by advocates of people of disabilities against the Secretary of State in California and seven counties in California (See " Disability Rights Suit Over California Voting Equipment" and "Voting Security Attacked In Court Again"). Here is a searchable (OCR'd) version of that complaint.

Dan does a great job of summarizing the suit so I'll try not to be redundant with what he said. I do want to point out a few things that I found interesting.

First, it is interesting to note which counties are not named as defendants in the suit. A quick glance at the Secretary of State's list of voting systems used by each county in California's recent primary election shows that there are counties that meet the exact criteria of some of the defendants but that were not named. None of the twenty counties using the Sequoia AVC Edge DRE with VVPAT or the four counties using the Hart eSlate DRE with VVPAT were included despite the fact that neither of these systems read the contents of the VVPAT record to voters with visual disabilities. The suit names only three out of the eleven counties that used the AutoMARK for HAVA compliance. It also only names Alameda county as having violated HAVA by using the VVPAT-enabled version of the DESI AccuVote-TSx when there are ten other counties that used the same model (including the largest, Los Angeles County, where presumably many voters with visual and manual disabilities reside). The plaintiffs fault Yolo county for not having an accessible system at all, which Dan notes is a serious issue of HAVA non-compliance.1 However, the suit also claims in paragraph 13 that six other counties were in the same situation but does not name these counties as defendants (and the suit neglects to mention Nevada county which also had to rely on HAVA-non-compliant optical scanners). I'm unsure as to why the plaintiffs chose this particular set of defendants and didn't simply list every single county in California as violating their reading of the accessibility provisions of HAVA. Later: Dan points out that it would be a hard case to manage with so many defendants; if they can get a ruling responsive to their claims with this set of defendants, then other counties should fall in line (or they could bring suits against those that do not).

A second issue that Dan mentions concerns whether there exists a private right of action under HAVA. If the court finds that there is no private right of action, four out of the five claims -- the HAVA-specific ones -- will be moot. Dan points out that the 6th Circuit has ruled in Sandusky County Democratic Party v. Blackwell that there is a private right of action under section 302 of HAVA (although their claims were rejected on the merits). However, the accessibility provisions are from section 301 of HAVA, which broadly requires states to meet a minimum set of standards for voting technologies used in federal elections.

In a recent case (Taylor et al v. Onorato et al, W.D. Penn. 2006, case: 2:06-cv-00481) a District Court ruled (orally) that there was no private right of action under section 301 and dismissed the plaintiff's section 301 HAVA claims. The District Court Judge in this case, Gary L. Lancaster, was persuaded by the Department of Justice's argument filed in that case (see 15-25 of the DoJ's "Opposition To Plaintiffs’ Motion For Preliminary Injunction"). In this case, the DoJ's argument distinguished Sandusky v. Blackwell on section 302 from the issue of a private right of action under section 301 by noting that section 302 specifically talks about a voter's "right" to cast a provisional ballot (at 19):

As noted, the Blackwell Court relied on the text of Section 302 which, among other things, referred to "right of an individual to cast a provisional ballot." 42 U.S.C. § 15482(a)(2). In contrast, however, Section 301 contains no similar language. In fact, unlike Section 302, the words "right" or "rights" are neither used nor implied in Section 301. Instead, Section 301 focuses mostly on the complex and at times technical requirements of voting machines used in federal elections. Thus, Section 301, with its technical emphasis on minimal standards for "voting systems" used in federal elections nationwide, was not drafted "with an unmistakable focus" on voters. Cannon v. University of Chicago, 441 U.S. 677, 690-92 (1979). Instead, Section 301 focuses on the state actors charged with overseeing voting and not on individual rights. Accordingly, there is "far less reason to infer a private remedy in favor of individual persons." Id. at 690-91.

The DoJ's memorandum goes on from there to argue that there already is a comprehensive enforcement mechanism codified in HAVA (Title IV) and that this was a conscious effort on behalf of Congress to preclude a private right of action. (They even quote, at 18, one of HAVA's authors, Senator Dodd as saying "While I would have preferred that we extend [a] private right of action ..., the House simply would not entertain such an enforcement provision." 148 Cong. Rec. S10488-02, S10505 (daily ed. Oct. 16, 2002).).

Those are my two cents. Don't get me wrong, I think that accessibility is an important issue and essential to the electoral franchise. Most current DREs (with or without VVPATs) support accessibility features particularly poorly. In fact, they support many things poorly (security, usability, reliability, transparency, etc.). While I understand that many people with disabilities have only recently been able to vote privately and independently, there is no one machine that will solve all these issues on the market. To do so, we need to work together. We need to, through research, develop architectures that solve multiple, seemingly competing values. We need to tell our election officials and the voting system vendors that it's not impossible to design, implement, market and support such systems. We need to work on moving the technology and the processes surrounding them in this direction. I don't see lawsuits as the answer; this is not a short-term endeavor that will be solved by a lawsuit here and there.

[UPDATE 2006-08-04T09:02:42]: Dan provided some comments and I'm changing the text a bit (there were some errors). Sandusky found that there is a private right of action under 302; I had listed the opposite. Dan further says that distinguishing section 302 from 301 on the basis of the word "right" is a pretty thin strategy and that even though Title IV has a comprehensive enforcement architecture, that doesn't meen that Congress intended to extinguish any right of action under 42 USC 1983 where state actors violate federal rights. Of course, Dan knows way way more about this than I do, so I guess we'll see what happens.

Footnotes:

1Yolo had planned to use the Vote-PAD which is a low-tech assistive device. However, the Secretary of State claimed that the Vote-PAD would have to undergo state certification like other fully end-to-end voting systems and that process was unable to reach completion before the June primary. It is unclear if the plaintiffs in this case would consider the Vote-PAD sufficient to render an optical scan system accessible under their definition. (An interesting note for voting technology geeks: the Vote-PAD is the only technology that a person who is both deaf and blind could use to verify their vote; it accomplishes this by using a braille voter guide coupled with a vibrating detection wand that allows these voters to know exactly which parts of an optical scan ballot are filled in.)