U.S. judge backs Volusia in voting-machine case
The ruling clears the way for fall elections minus touch-screens, county leaders say.

By Kevin P. Connolly | Sentinel Staff Writer
Posted July 22, 2005

DeLAND In a victory for Volusia County and foes of paperless voting, a federal judge Thursday denied blind advocates' demand for disability-accessible, touch-screen voting devices in Volusia for the Oct. 11 city elections.

U.S. District Judge John Antoon II said previous court cases and existing federal law do not require equipment for visually disabled people to vote independently.

Antoon also shot down arguments from attorneys for the National Federation of the Blind and others suing Volusia County that a state law requires accessible voting devices for elections after July 1.

He noted that accessibility requirements under the federal Help America Vote Act take effect Jan. 1, and federal grants to help pay for accessible devices must be returned if they are not spent by that date.

But the state law merely authorizes the use of electronic voting devices and provides standards for certifying such equipment, Antoon said in his six-page ruling.

The state law "simply has no bearing," he wrote in his order denying the NFB's request for a preliminary injunction to force the county to buy touch-screens. The devices allow the visually disabled to vote using "audio ballots" and headphones.

Daniel F. Goldstein, a partner with the Baltimore-based firm of Brown, Goldstein & Levy for the NFB and other plaintiffs, said he would appeal to the U.S. Court of Appeals for the 11th Circuit in Atlanta.

"I'm disappointed, but it's not the end of the case," Goldstein said.

County Council Chairman Frank Bruno said the ruling supports his position "that we weren't in any violation of anything."

It gives the county the time it wanted for an alternative device possibly a ballot-marking device with a disability-accessible touch-screen interface called the AutoMark to be approved for Florida, Bruno said.

The decision answers a question for Elections Supervisor Ann McFall about whether she can conduct this fall's city elections without adding touch-screens to Volusia's paper-based, optical-scan system.

Doug Towne, a disability consultant for the Florida Division of Elections, said he was in "complete shock and dismay" about the judge's decision.

"It's hard for me to even understand how you could read this statute . . . and think it was anything other than a mandate from the Legislature" to have accessible voting systems for elections after July 1.

The NFB and others filed a federal lawsuit in Orlando on July 5 after a majority of County Council members voted in June against a grant-funded contract to spend $776,935 for 210 touch-screen machines and related equipment from Diebold Election Systems.

Council members who voted against the contract sided with activists who expressed concern because they don't produce paper ballots that can be checked in close elections and recounts.

In his ruling, Antoon noted that having such a feature has "proved valuable in at least one of Florida's past elections."

Attorneys for the NFB alleged the County Council vote violated the federal Americans with Disabilities Act of 1990. That claim, the judge wrote, relied heavily on a federal case in which Senior U.S. District Judge Wayne Alley agreed with disability advocates who sued Duval County in 2001 for accessible and independent voting.

Alley sided with the disability advocates in 2004 but stayed his own order as the county appealed. But at least two other courts ruled contrary to Alley in similar cases.

"Against the background of these cases and the tentativeness of the court's decision [in the Duval case] this Court cannot conclude that the state of the law is such that there is a substantial likelihood that Plaintiffs will prevail in their action under the ADA," Antoon wrote.

The "substantial likelihood of success" standard is one of four factors that must be met for a preliminary injunction.

Plaintiff Kathy Davis of Ormond Beach, president of the National Federation of the Blind of Florida, said she and others will keep pressing.

"I don't call this a failure, but a disappointment," she said.