County facing potential defeat in e-voting case

By: DAVE DOWNEY - Staff Writer

LOS ANGELES A federal judge Thursday tentatively ruled against Riverside County in its lawsuit against Secretary of State Kevin Shelley over electronic voting.

While U.S. District Judge Florence Cooper's 17-page opinion is tentative pending the outcome of a court hearing Friday in Los Angeles, such rulings are rarely reversed.

The tentative decision makes it likely that the county will have to comply with state rules for using touch-screen voting machines in the Nov. 2 general election.

Those rules, issued in an April 30 order by Shelley, require Riverside and nine other counties that use a certain type of electronic machine to provide a backup paper trail of votes, among other measures. The county is seeking a restraining order or injunction barring the state's enforcement of the order.

Riverside County officials have maintained that complying with the rules would cost up to $2.7 million and is unnecessary in the county, where there are plenty of safeguards on the machines, which have been used without problems for four years.

The Shelley order also bans the use of newer electronic voting machines in four counties, including San Diego.

In early May, Riverside generated nationwide headlines when it became the first county to sue over Shelley's order. In the suit, the county asserts that the order would jeopardize the integrity of the general election because electronic machines are more accurate than traditional punch-card ballots, and that it threatened to disenfranchise hundreds of thousands of disabled Californians. For the first time, the suit noted, a way to vote privately and independently without aid was opened through touch screens.

Cooper's tentative ruling strongly rejects those arguments.

"Although it is not disputed that some disabled persons will not be able to vote independently and in private without the use of (direct recording electronic machines), it is clear that they will not be deprived of their fundamental right to vote," the judge states. "Nothing in the Americans with Disabilities Act or its regulations reflects an intention on the part of Congress to require secret, independent voting."

Cooper said the Help America Vote Act of 2002 does require at least one electronic machine be made available at each polling place, but not until Jan. 1, 2006.

The judge also suggested that Shelley was well within his authority.

"The secretary of state reasonably exercised his discretion in concluding that DREs must not be used in California until specific steps are taken to assure their reliability," the judge states.

The decision is a "reasonable one," Cooper concludes. "It is based on studies conducted and information gathered which convinced him that the voting public's right to vote is not adequately protected by the systems currently in place."

Concerns about the security of the new voting systems have raged throughout the country in recent months and particularly in California, where several counties experienced problems with the machines in the March primary. Voter activist groups and some state lawmakers have called for a paper trail and other safeguards to ensure that the systems cannot be tampered with.

But Riverside County says it has a good track record after becoming the first large county in California to go to electronic voting in 2000. The county purchased 4,000 touch-screen machines for $15 million.

"We filed the action because we believed our argument was valid," said county spokesman Ray Smith. "If the judge disagrees, we'll look at the decision and do everything we can to ensure that, regardless of any modifications that might occur, the voting system we use remains as reliable, accurate and efficient as the system we have in place now. Our track record is 29 consecutive elections without problems."