BREAKING: Federal Judge Rules in Favor of Plaintiff Demand for Emergency Paper Ballots in PA

Blogged by Brad Friedman on 10/29/2008 3:51PM

Ballots Must Given Out if 50% or More Voting Machines in Any Precinct Breaks Down

UPDATED TWICE: SoS Will Not Appeal Decision, But Statement from His Office Includes a Troubling Note; Plaintiff Attorney Responds to The BRAD BLOG...

[Please note several important UPDATES added to the bottom of this article. - BF]

This just in from Pennsylvania... a federal court has found in favor of the NAACP and the 866-MYVOTE1 Election Reform Network, which were forced to sue the state's Democratic Secretary of the Commonwealth, Pedro A. Cortes, after his recent directive that emergency paper ballots only need to be given to the voters in the event that all of a precinct's touch-screen voting machines failed.

Most of PA uses 100% unverifiable touch-screen voting systems, and many of them broke down across the state during last April's Primary Election, leaving untold numbers of voters unable to cast votes.

As we reported when the lawsuit was filed last week, state law allows county clerks to give out paper ballots if just one machine breaks down on Election Day; Cortes' stunning decree, issued last month, went unchallenged by both the DNC and the Barack Obama campaign...

We heard the news of the court's decision a few minutes ago from John Bonifaz of VoterAction.org, the election watchdog legal organization which represented the plaintiff coalition. In a statement just issued, Bonifaz said, "This is a huge victory for the voters of Pennsylvania." He noted that "this ruling will ensure that many voters across Pennsylvania will not be disenfranchised when voting machines break down on Election Day."

The lawsuit [PDF], filed last week, called for Emergency Paper Ballots to be issued in the event that a majority (50%) or more broke down. That, despite PA election (3031..20: Section 1120-A) which allows for such ballots to be given out [emphasis added] "If any electronic voting system or any component thereof being used in any election shall become inoperable."

Cortes' directive had stated that [emphasis added again] "if all electronic voting machines in a precinct are inoperable...'emergency back-up paper ballots' shall be distributed immediately to eligible voters."

From today's ruling [PDF], as posted at Rick Hasen's Election Law Blog:

(2) the Secretary of the Commonwealth, Pedro A. Cortes, is preliminarily ENJOINED to direct forthwith all the County Boards of Elections throughout Pennsylvania as follows:

If 50% of electronic voting machines in a precinct are inoperable, "paper ballots, either printed or written and of any suitable form," for registering votes (described herein as "emergency back-up paper ballots") shall be distributed immediately to eligible voters pursuant to section 1120-A(b) of the Election Code. Emergency back-up paper ballots shall be used thereafter until the county board of elections is able to make the necessary repairs to the machine(s) or is able to place into operation a suitable substitute machine(s);

Even as it doesn't go nearly far enough, today's ruling should be very good news for Keystone Staters who saw voting machine breakdowns all across the state during their Primary Election last Spring, as we documented in some detail while they were being reported from local election watchdogs.

It should also be noted that the state GOP, at one point last week, had filed a motion to intervene in the case, to take the side of state Democrats in trying to limit the use of emergency paper ballots. We mention that just to give you an idea of how shameful the state Democrats' directive was in the first place.

Finally, credit must be given to Mary Ann Gould, a PA election integrity advocate from the Coalition for Voting Integrity and host of Philadelphia's "Voice of the Voters" radio program, for her tireless efforts in helping to bring Cortes' disturbing decree to light. Her show is listener supported, and facing difficult times, so please consider dropping something in her tipjar over there to help keep her, and her important work, on the airwaves!

UPDATE 6:10pm PT Cortes has just issued a statement to say that he will not appeal the court's decision. (See full statement at end of this article.)

While his statement says he will comply with the federal court order, it also notes [emphasis added]:

The department will work with county officials across the state to ensure the uniform application of this decision-that emergency paper ballots only be used when 50 percent of the voting machines malfunction or fail

As we've already noted above, PA Election Code allows for counties to give out emergency paper ballots "If any electronic voting system or any component thereof being used in any election shall become inoperable."

Does Cortes' statement mean that county clerks no longer are allowed to decide for themselves, but can only give out emergency paper ballot if 50% or more of the machines break down, instead of just one, as allowed by PA code? If so, that's quite disturbing.

No one answered the phone at the number given in the press release, but if we can learn anything, we'll update again.

UPDATE 6:30pm PT: We were able to get in touch with VoterAction.org's, John Bonifaz to ask him about the troubling language in the statement, as noted above.

After we pointed it out, he too was concerned about it, while noting that the judge has ordered Cortes to issue a formal directive to change his previous directive that decreed emergency paper ballots must be given out if 100% of the voting machines break down in a precinct. That directive did not say only in the event of 100% malfunction can paper ballots be given out --- even though, Bonifaz noted, some county clerks had interpreted it that way, as testified to during eight and half hours of hearings in the case yesterday.

The statute, in PA election code, allowing for EPBs to be given out after one machine breaks down, is a discretionary one. Clerks may give out paper in that event. Cortes' original directive, Bonifaz suggests, was hopefully to have been an attempt at adding a mandatory directive to the discretionary statute (ie. "You must give out EPBs if all machines break down.")

However, Bonifaz agreed that the language used in the press release --- a direct quote from Cortes --- which says that their office will "work with county officials across the state to ensure...emergency paper ballots only be used when 50 percent of the voting machines malfunction" is disturbing.

"If this is consciously an effort on behalf of the Secretary to rewrite the discretionary statute, he would effectively be in violation of the existing statute," he told us. "It's very problematic if that language ends up in the directive," to be issued tomorrow by Cortes, he said.

"I'm concerned if the Secretary adds to a new directive the word 'only' as to when emergency paper ballots are to be distributed, because nothing in [today's] court ruling allows for that," Bonifaz says. "For the Secretary to move this in this direction, to effectively nullify the existing discretionary statute --- his abilities as Sec. of the Commonwealth do not allow him to rewrite that statute."

We will keep our eyes on the exact wording of the directive to be issued by Cortes tomorrow, and will update, of course, as we learn more.

The statement from the Cortes' office, in response to the ruling today in federal district court, follows in full below...

FOR IMMEDIATE RELEASEOct. 29, 2008

COMMONWEALTH OF PENNSYLVANIA
Department of State
Commonwealth News Bureau
Room 308, Main Capitol Building
Harrisburg, PA 17120

CONTACT:
Leslie Amorós
Rebecca Halton
(717) 783-1621

SECRETARY CORTÉS RESPONDS TO COURT DECISION
Department Will Work with Counties to Prepare for Election Day

HARRISBURG - Secretary of the Commonwealth Pedro A. Cortés today issued the following response to a federal court's granting of a preliminary injunction that will require polling places in Pennsylvania counties to provide emergency paper ballots if 50 percent or more of their machines malfunction. Cortés said the department will not appeal the decision.

"We have reviewed the court's opinion and we will comply with its directive per their interpretation of the state election statute. The department will work with county officials across the state to ensure the uniform application of this decision-that emergency paper ballots only be used when 50 percent of the voting machines malfunction or fail-and that an adequate supply of emergency paper ballots is available.

"That said, we hope emergency paper ballots will not need to be used extensively on Election Day. Over the past four years, counties have put systems in place to remedy machine issues, including roving technicians and additional substitute voting machines.

"We share the plaintiffs' goal of ensuring that no eligible voter leaves the polls on Election Day without voting due to excessively long lines. In order to try to reduce the potential wait at the polls, the department has worked with counties to implement procedures to improve the sign-in process. An efficient sign-in process, including the use of split poll books-that is an alphabetical listing of voters from A-M and N-Z-will help move voters through the process faster. In addition, voters who want to avoid long lines are encouraged to vote mid-day during off-peak hours.

"Conducting a successful election requires proper training and clear procedures, and with this goal in mind, the department will issue a revised directive instructing the counties on how they should use emergency paper ballots when 50 percent or more of the voting systems malfunction. The department will work closely with the counties to ensure that the emergency paper ballots are administered in a consistent manner statewide."

The BRAD BLOG covers your electoral system, fiercely and independently, like no other media outlet in the nation. Please support our work with a donation to help us keep going. If you like, we'll send you some great election integrity documentary films in return. Details on that right here...

Justice Department Targets ACORN But Ignores GOP Voter Suppression

On the eve of the 2008 election, the Department leaks a FBI probe of ACORN but remains silent on widespread voter intimidation tactics.

From: AlterNet

By Steven Rosenfeld, AlterNet. Posted October 23, 2008.

Partisan considerations still appear to be contributing to the Department of Justice's actions when it comes to enforcing the nation's voting rights laws.

With Election Day less than two weeks away, proponents of more tightly regulating the voting process -- this time led by congressional Republicans -- have gotten their desired response from the nation's guardian of civil rights' laws: a FBI investigation into ACORN, the low-income advocacy coalition that registered 1.3 million new voters in 2008.

Last week, two FBI officials told reporters an ACORN investigation was underway, violating Department rules for disclosing information on cases that could impact an election. The Obama campaign's response was to ask the Attorney General to include that leak in a special prosecutors' investigation of the U.S. attorney firing scandal. No response to that request has been forthcoming.

But more disturbing to civil rights attorneys is the Department's silence on what voting rights lawyers say are myriad voter suppression tactics by partisans in the campaign's final weeks. These efforts include attempts by Republicans to disqualify legal voter registrations, unlawfully purge voters, threaten individual voters with polling place challenges, fabricate barriers to student voting and abuse prosecutorial authority by investigating 2008's early voters.

"Voter suppression is not new. But this year has brought heightened efforts to disenfranchise and intimidate voters," said Wade Henderson, executive director of the Leadership Conference on Civil Rights, in a Wednesday press conference. "We've seen legal challenges to registered, valid voters in Ohio; Fear tactics threatening that mortgage foreclosures or unpaid bills will thwart your right to vote or may even result in arrest; and massive attempts to confuse voters through robo-calls, official looking web sites and e-mails. These are targeted and insidious attempts to suppress the vote, particularly in communities of color."

The Justice Department did not respond to requests to comment.

What is most striking about the voting rights lawyers' criticism of the Department is that the agency does not have to wait until Election Day to act. Under Section 11(b) of the Voting Rights Act, the Department can move to stop voter intimidation schemes without having to prove the motive behind those actions. This section of the law does not require the government show any intent by partisans to discriminate, the lawyers say. Instead, if the result is intimidation or suppression of minority voters, it can act.

"We really need the Justice Department to get out there and make a pronouncement, publicly, that voter intimidation and voter suppression will not be tolerated because it violates federal law," said Gerry Hebert, executive director of the Campaign Legal Center and a former Department Voting Section Chief. "We have asked the Attorney General to do this and thus far there has been a deafening silence."

"I think the Department's response to these issues, at best, is tepid, and at worst ignores what we think is a serious problem and their responsibility to address it," Henderson said. "The Department of Justice often argues that its jurisdiction is limited. But we think the interpretation that they have given to their jurisdiction is exceedingly narrow and it certainly ignores the larger responsibility to use the bully pulpit of the Attorney General to make clear that the Department will vigorously prosecute where possible, under federal law, any attempt to suppress the right of duly registered American citizens."

Henderson said he and other voting rights advocates recently met with the Department's Civil Rights Division to discuss issues surrounding voting rights enforcement in the 2008 election. He and others civil rights attorneys said there are precedents for the Department to discuss their enforcement priorities -- as opposed to citing specific cases -- before an election.

"I spent 21 years in the Justice Department and there is precedent for the Department to issue a public statement about how they are going to interpret or enforce the law," Hebert said, giving the example of statements made on the eve of congressional elections that preceded federal redistricting.

Other election lawyers say the Department has "ramped down" from enforcing voting rights cases since the U.S. attorney firing scandal and Michael Mukasey became Attorney General. They did praise some recent cases or settlements where the Department acted on the behalf of voters, such as joining a suit in Georgia where local election officials wanted Latinos to present proof of citizenship as part of registering to vote -- which was not in their state's law, as well as fostering a settlement in Prairie View, Texas, where local election officials have repeatedly interfered attempts by university students to vote.

However, some recent campaign tactics by Republican partisans clearly have violated federal law and have drawn no Department response, the civil rights lawyers say.

Most notable in this regard in an investigation launched by Joe Deters, the county prosecutor in Hamilton County, Ohio, where Cincinnati is located, of several hundred people who registered to vote and then voted during a week-long window earlier this month. Even though Deters, who is the southwest Ohio McCain campaign chairman, this week handed the investigation to a "special prosecutor" after protests, a letter sent by the civil rights groups to that lawman, Michael O'Neill, compared Deters' investigation to intimidation by Alabama sheriffs who violated the 1957 Civil Rights Act "when they followed persons on their way home from a voter registration meeting and arrested them for traffic violations."

"Moreover, we believe that an investigation of persons based on nothing more than their exercise of their right to register and vote would also violate their constitutional rights under the First and Fourteenth Amendments to the U.S. Constitution," the letter said, after detailing how Deters' investigation violated the voter intimidation sections of the Voting Rights Act of 1965 and the National Voter Registration Act of 1993.

The groups singing the letter, which urged O'Neill to "suspend any investigation," include the American Civil Liberties Union of Ohio, ACLU Voting Rights Project, Demos, Lawyers Committee for Civil Rights Under Law, Project Vote and the Miami Valley Voter Protection Coalition and numerous Ohio law school professors. Letters were also sent to the Justice Department's Voting Section chief, and chief of the Criminal Section of the Department's Civil Rights Division.

"Four hostile newspapers are more to be feared than a thousand bayonets. "
Napoleon Bonaparte

http://elrinconcitodeaurora.blogspot.com/