NAACP, Voting Rights Coalition Demand Paper Ballots If 'Majority' of Voting Machines Fail

Sec. of the Commonwealth Had Previously Decreed Paper Only Necessary if ALL Voting Machines Break Down in a Precinct...

Brad Friedman Byon 10/23/2008, 2:47pm PT

Finally! A lawsuit [PDF] has finally been filed today in federal District Court in Pennsylvania, against the Democratic Secretary of the Commonwealth, Pedro A. Cortes and the Commissioner of the state's Election Commission, Chet Harhut, over Cortes' recent directive that paper ballots only need be given out to voters in the event that every voting machine in a precinct breaks down.

That stunning decree was in opposition to PA's state law which allows election officials the discretion to give emergency paper ballots to voters if even a single machine breaks down in a precinct.

That neither Obama nor the DNC have said a word about this in the month or so since Cortes issued his directive has been maddening, and should be an outrage to voters of all parties in the Keystone State, sure to be another battleground state this November. The lawsuit was finally filed today by the state's NAACP in concert with the 866-MYVOTE1 Election Reform Network.

While the complaint should call for paper ballots to be made available to any voter who wishes one, or, at a minimum, to be given out if just one machine breaks down in a precinct, or even if the wait time in line is longer than 30 minutes, unfortunately, the suit calls very conservatively for emergency paper ballots to be given out if 50% or more of the voting machines in a precinct break down. But at least it's something, we guess, particularly in lieu of Obama and/or the DNC taking any action at all here, given they have the most to lose by the ridiculous action from state Democrats.

Pennsylvania uses unverifiable Direct Recording Electronic (DRE, usually touch-screen) machines across most of the state, and saw machine failure after failure, as we documented in detail during their April primary this year. The failures resulted in untold numbers of disenfranchised voters, as noted in news reports, and logged by calls to the 866-MYVOTE1 hotline...

"Voters should not be forced to wait hours in line in order to exercise their fundamental right to vote," said John Bonifaz, legal director for VoterAction.org and co-counsel for the plaintiffs in a statement issued today. "While the use of electronic voting machines continues to pose a separate threat to the integrity of the vote-counting process, federal court intervention is necessary to ensure that voters will not be disenfranchised by long lines on Election Day in Pennsylvania, when these machines become inoperable."

In a declaration filed with the suit, J. Whyatt Mondesire, the president of the NAACP State Conference of Pennsylvania, notes: "One of the major impediments to members exercising their right to vote is the long lines frequently encountered on election day...Thousands of members have faced serious delays in voting when machines have broken down in the past and this problem will be much more severe this year when unprecedented numbers of voters will be coming to the polls."

[DISCLOSURE: John Gideon of VotersUnite.org, a frequent contributor to The BRAD BLOG has also filed a declaration to the court in the case.]

The 23-page complaint filed today in federal court, in PA's Eastern District is available for download here [PDF]...

The plaintiffs 37-page "Memorandum of Law" may be downloaded here [PDF]...

Some weeks ago Mary Ann Gould, an election integrity advocate from the Coalition for Voting Integrity, and host of Philadelphia's "Voice of the Voters" radio program notified The BRAD BLOG about the order from Secretary Cortes as she began trying to raise awareness of the issue on her radio program, and via email.

She compared the the state statute, versus the directive from Cortes in an email, which noted, in part:

(b) "If any electronic voting system or any component thereof being used in any election shall become inoperable during such election, it shall, if possible, be repaired or another machine substituted by the custodian or county board of elections as promptly as possible, for which purpose the county board of elections may purchase as many extra systems or system components as it may deem necessary, but in case such repair or substation cannot be made, paper ballots , either printed or written and of suitable form, may be used for registering votes." Statute in the election code ( 3031..20) Section 1120-A which says: VERSUS recently issued Directive (directive are guides NOT law) "if all 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. "

The "Nature of the Case" opening of the complaint filed today, details the "perfect storm" expected by plaintiffs --- and we heartily agree with them about what is likely to occur this November 4th --- leading to their demand for emergency paper ballots if %50 or more of machines fail. And again, why the Democratic Secretary of the Commonwealth hasn't demanded that there be enough paper ballots for every voter --- and why neither Obama nor the DNC have said or done a thing about it --- remains well above our paygrade, apparently...

NATURE OF THE CASE 1. This civil rights action is brought to enforce the most fundamental right secured by the United States Constitution: the right to vote. 2. In Pennsylvania this year, an unprecedented interest in voting, a record number of newly registered voters, and a well-established history of widespread electronic voting machine failures have converged to create a perfect storm that, left unaddressed, unquestionably will result in the disenfranchisement of substantial numbers of citizens. Fortunately, the remedy for this grave threat to the franchise is simple and places only the slightest of burdens on the State: the provision of emergency paper ballots when half or more of the voting machines in any precinct simultaneously fail. 3. In the face of the extraordinary stresses that our election apparatus will face this year, the new rule promulgated by the Pennsylvania Secretary of the Commonwealth directing the use of emergency paper ballots only when all of the voting machines in a precinct fail is nothing short of perverse. It rests on the specious proposition that remedial action is only required in the most dire of circumstances when no machines work at all and that no remedy whatsoever is appropriate where, as here, the record demonstrates an overwhelming likelihood that substantial numbers of precincts will have half or more but not all of their electronic voting machines fail. 4. Although state officials generally have wide discretion to administer elections in the manner they see fit, this is the rare case in which the Secretary is playing with fire to a constitutionally intolerable degree. Given the certainty that electronic voting machines will fail recognized by the states own certification expert and given the dramatic impact that every failure has on the affected precinct because the vast majority of precincts have no more than two or, at most, three machines this Court should direct the Secretary of the Commonwealth to ensure that local election officials provide voters with paper ballots if 50% or more of the voting machines in a precinct become inoperable. This modest intervention will allow all of those who wish to vote the opportunity to do so in a timely manner and without undue delay, while imposing only a negligible burden on the State and local election officials. In this historic year, and given the gravity of the threat to the franchise, surely the Constitution requires this minimal safeguard.



