County argues vote case in court

By: DAVE DOWNEY - Staff Writer

LOS ANGELES Stung by an unfavorable tentative ruling, attorneys argued in Los Angeles federal court Friday that Riverside County should not have to follow tough, new state guidelines on using touch-screen voting machines in November.

The attorneys contend the county should be relieved of the state requirements because it did not have problems with the devices in 29 previous elections.

But, following the morning hearing, the legal representatives said there is little chance that U.S. District Judge Florence-Marie Cooper would reverse herself and set aside the guidelines from an April 30 order by Secretary of State Kevin Shelley. They said they anticipate a final ruling next week and are making plans to appeal.

If, as expected, Cooper rejects the request of Riverside and three other electronic-voting counties to issue a temporary injunction that would block enforcement of the Shelley order, the counties could still go to trial. But attorneys said an unfavorable final ruling would indicate they would not fare better at trial in Cooper's courtroom, and consequently they would want an audience with the Ninth Circuit Court of Appeals.

At stake for Riverside County is the potential for up to $3 million in expenses for new equipment to comply with the order, during a year when money is particularly tight because of the state budget crisis.

Joining Riverside County in its challenge to Shelley are San Bernardino, Kern and Plumas counties, as well as several disabled advocacy groups. The advocacy groups contend Shelley's order turns back the clock on advances in voting access to the blind and deaf that touch-screen systems provide.

"For once, finally, disabled people have a way to vote independently," said 51-year-old Paul Van Doren of Riverside, who is blind, after the hearing. He attended the 90-minute proceeding in downtown Los Angeles with his aide dog, Steve, a 10-year-old Labrador retriever who slept on the courtroom floor.

Van Doren said he doesn't want to go back to voting by telling a family member how to mark an absentee ballot.

That the clock is being turned back on the disabled is a key part of the counties' argument on why they should not have to follow Shelley's order.

Paula Pearlman, attorney for the Western Law Center for Disability Rights in Los Angeles, said the 1990 Americans with Disabilities Act suggests that, once improvements are made for the disabled, government cannot take them back.

But Cooper's tentative ruling states, "Nothing in the Americans with Disabilities Act or its regulations reflects an intention on the part of Congress to require secret, independent voting." The point of Shelley's order is to ensure the security of voting for everyone, she wrote, and it does not take away a disabled person's "fundamental right to vote."

John McDermott, a Los Angeles attorney leading the team representing the counties and disabled groups, argued that a fundamental problem with Shelley's order is that there are no state regulations governing how voting systems may be decertified.

McDermott maintained the order was overkill for solving a minor problem that afflicted a handful of counties, and not Riverside.

"The secretary used a sledgehammer instead of a scalpel," he said.

At the least, McDermott said, the judge should scale back Shelley's order to apply only to those counties that suffered significant glitches.

But Doug Woods, the attorney for the secretary of state, characterized Cooper's tentative ruling as "right on the money" and urged against "picking and choosing" among the 14 counties that used electronic voting in the March 2 primary. He said the state acted to fix problems that could spread to other systems and to fix it so that systems cannot be tampered with.

He said the counties were overstating the breadth of Shelley's order.

"Did he slam the door on (direct recording electronic machines)?" asked Woods. "No. He said, 'This is what it is going to take to assure me that DREs are going to be reliable and secure for use on Nov. 2.'"

The April order said four counties, including San Diego, that had been using newer types of electronic machines could not use them in the fall. And Shelley ordered 10 other counties, including Riverside, to take several measures to address security concerns, if they want to use the devices in the fall. Five of those 10 Orange, Santa Clara, Merced, Tehama and Shasta have agreed to follow the new requirements.

Riverside County Registrar of Voters Mischelle Townsend said for her county, the order would mean spending $3 million. That's the local cost of giving every person the opportunity to vote by paper ballot, and to view a printout of how he or she voted electronically before leaving a polling place.

Specifically, the money would go for hundreds of thousands of traditional punch-card ballots, Townsend said, as well as for hundreds of punch-card readers and voting booths, and hundreds of printers to produce the print-outs.

One goal of switching to electronic voting, Townsend said, was to eliminate the high paper cost associated with punch-card systems. But McDermott said Shelley's order requires the county to maintain dual systems.