Disabled advocates fight vote ruling
Judge erred in refusing to order Volusia to buy accessible touch-screens, lawyers say

By Kevin P. Connolly | Sentinel Staff Writer
Posted July 23, 2005

DELAND A federal judge misread a state law and incorrectly applied previous court rulings when he refused to order disability-accessible touch-screen voting in Volusia County this fall, attorneys for the National Federation of the Blind and others said Friday.

Attorneys for the NFB, its state affiliate and five blind voters from Volusia filed an appeal with the U.S. Court of Appeals for the 11th Circuit in Atlanta seeking to overturn U.S. District Judge John Antoon II's decision on Thursday.

In their 13-page motion, attorneys for the NFB and other plaintiffs asked the appellate court to force Volusia officials to purchase the paperless touch-screens by Monday.

That would allow delivery of the machines by Friday, the "-dead date" to implement touch-screens for Volusia's next election, which is Oct. 11, according to the appeal.

"It's an emergency," said James Gashel, executive director for strategic initiatives for the NFB, a nonprofit with its main offices in Baltimore and more than 50,000 members nationwide.

County leaders have said they support accessible voting but oppose the machines, which allow visually disabled people to vote independently with "audio ballots" and headphones, because they don't use paper ballots.

Paper ballots, such as the ones now used in Volusia's optical-scan voting system, are essential for double-checking results of close elections or recounts, most County Council members say.

A response to the appeal was expected by Monday.

County Chairman Frank Bruno was confident that Antoon's ruling, which he called "a win for all of the voters of Volusia County," would be upheld.

"I believe that, hopefully, the court of appeals will back up Judge Antoon," Bruno said Friday.

A majority of County Council members in June rejected a largely grant-funded plan to spend $776,935 for 210 accessible touch-screens and related equipment from Diebold Election Systems. That prompted the NFB and others to file a federal lawsuit against the county July 5.

The suit alleged the council's vote violated the Americans with Disabilities Act of 1990 and a new state law that Florida officials say requires at least one accessible-voting device per polling location for elections after July 1.

In his ruling Thursday, Antoon said the disabilities act doesn't mandate accessible and independent voting and the state law merely authorizes not mandates the use of electronic-voting devices.

In the NFB's appeal, its attorneys argued that Antoon failed to consider the alleged disabilities-act violation fully.

NFB attorneys also said Antoon misread the state law, which they said was enacted in 1973 to authorize electronic voting instead of lever-operated devices but was amended in 2002 to mandate accessible voting.

The appeal says the Florida Attorney General's Office and the state Division of Elections have interpreted the state law to mean accessible machines must be in place for elections after July 1.

But Bruno, other county officials and certain voting activists said the deadline for accessible-voting machines under the federal Help America Vote Act is Jan. 1.

Having more time to purchase accessible-voting devices means an increased chance that new, accessible equipment possibly a ballot-marking device called AutoMark will be certified for use in Florida, Bruno said.

The device, marketed by Diebold competitor Elections System & Software, is being evaluated by the state. But no one knows when, or if, the equipment will be certified. Counties may not buy uncertified equipment.

As of Friday, state officials said applications for AutoMark to be certified with Diebold optical-scan systems, including the one used in Volusia County, are complete.

A plan to test the device is being developed and, if it passes the test, it will earn certification, said Jenny Nash, a spokeswoman for the state Division of Elections.