Ballot lawsuit allowed to continue

By BRYAN CORBIN Evansville Courier & Press October 13, 2004

With the Nov. 2 election less than three weeks away, the Vanderburgh County Election Board warns that tinkering with the ballot now would cause "chaos" when more than 400 people already have cast absentee ballots without ballot numbers.

But if Vanderburgh County Democrats ultimately prevail in their lawsuit, election officials will be forced to quickly revise electronic ballots on the county's new touchscreen voting machines to place ballot numbers next to candidates' names.  
County Clerk Marsha Abell warns that reprogramming the electronic voting machines could cost the county thousands that it doesn't have. Vanderburgh Circuit Court Judge Carl Heldt decided at an emergency hearing Tuesday to allow the lawsuit to go forward. He will hear more testimony and arguments at another hearing at 1 p.m. Thursday. The Vanderburgh County Democratic Central Committee contends the county Election Board made a mistake last month when it approved the electronic ballot without a number on the line next to each candidate's name. A state law requires such a number, argued Stephanie Brinkerhoff Riley, attorney for the Democratic committee. Moreover, voters are accustomed to associating a candidate's name with a number under the county's old punchcard voting system. The numbers are an aid to those who don't read well, she said.

The Election Board adopted the ballot Sept. 20. Although its lone Democratic member, Donald Vowels, argued for including the ballot numbers, he was outvoted by the two Republicans on the board, Mark Foster and Abell. They contended the new electronic voting system could not assign a number to each candidate.

The Democratic Central Committee sued the Election Board Sept. 27, arguing that under Indiana law, the board doesn't have any choice. Democrats are asking the judge for a declaratory judgment requiring the Election Board to the ballot with a number next to each candidate. If the ballot were numbered, "it's one less thing the county has to deal with in terms of a challenge to the election results," Riley told the judge.

Election Board attorney Les Shively argued Tuesday that the Democrats waited too long to raise the issue. Absentee balloting started Oct. 4, and voters are currently casting votes on the touchscreen machines at the Voters Registration Office in Evansville. Shively questioned whether the electronic ballot can be modified now. "You would literally be changing the ballot in the middle of the election," he said.

Heldt had to decide Tuesday if there were sufficient grounds to proceed with a full hearing on the lawsuit. Heldt ruled there was. "I think this case needs to be heard and it needs to be heard soon," he told the attorneys. But he also questioned whether time will allow reconfiguring the ballot before Nov. 2.

"I wonder if this would be a good case to make a decision for future elections, not this one," Heldt said. Indiana has no elections scheduled in 2005; the next one is the May 2006 primary.

The Nov. 2 election will be the second time Vanderburgh County uses the iVotronic touchscreen voting machines manufactured by Election Systems & Software, or ES&S. The Omaha, Neb.-based company was paid $1.9 million to supply the county's new voting system. Between 550 and 600 iVotronics will be used in 139 precincts on Nov. 2, displaying nine different ballot styles for various overlapping districts.

Under the county's old punchcard voting system, candidates' names on the ballot corresponded to pre-printed numbers next to chads on the punchcards. "The Election Board didn't assign (the number). It assigned itself, based on where it fell on the IBM card," Abell said. During the first use of the iVotronic machines in the May 4 primary, no voters asked for an electronic ballot with numbers, Abell said. She questions whether numbers are still necessary, since the touchscreen system has an audio backup with headphones for voters who are visually impaired or unable to read. In races with multiple candidates, the computer-generated voice enumerates the candidates' names as it recites them in alphabetical order, she said.

The 2003 state law the Democrats cite says that if a voting system has the capability, then it must display the candidate's name and "a ballot number or other candidate designation uniquely associated with the candidate."

The Election Board in turn cites a 1997 law from the same chapter of the Indiana election code. It says "software or source code of a voting system may not be changed while an election is being conducted or during the canvassing of the election's results." Interpreting those laws will be the judge's job.