Getting out the vote just got tougher

Misreading the law has state eying machines that hinder elections

By LAWRENCE NORDEN & JEREMY CREELAN    Opinion    New York Daily News   22 November 2005

New York is about to purchase new voting machines. Unfortunately, the New York State Board of Elections has taken the position that the state may only choose from among the most expensive, error-prone and inaccessible machines available.

What's going on? The board has misread an 1899 election law. If read properly, that law merely requires all candidates in a particular race to be listed on the same page or frame. This requirement makes sense: it would not be fair to put George Bush on one page and John Kerry on another.

But in the current draft of its voting systems guidelines, the state board takes this requirement too far. It misinterprets the law to require every single race and ballot initiative to appear on the same big page or frame. This "full face" requirement will hurt voters and taxpayers severely.

Purchasing costly full-face machines guarantees that many voters will unnecessarily lose their votes. Studies of the 2004 elections show that voters using full-face machines were more likely to make errors than voters who used machines that allowed them to view one race at a time. In addition, advocates for the disabled specifically object to the full-face requirement because it presents barriers to voters with cognitive disabilities who cannot read all of the rows and columns side by side.

New York law merely requires that the contents of the "ballot" must be arranged so that any given screen or page does not exceed the boundaries of the frame. In other words, no candidate should be disadvantaged by being left off the same display as other candidates in the same race. The first version of that law was enacted in 1899 at a time when parties produced and distributed the ballots themselves. That law's purpose was to prevent party bosses from creating ballots that would place themselves (or their allies) on one side of a ballot, and their chief opponents on the other. The current version of the law was passed to ensure that each candidate's name fit within each of the machine's ballot frames. The Legislature never intended to require a full-face presentation with all offices presented at once.

The state board should reconsider its misinterpretation of the law and allow local election officials to choose from among the best possible voting machines.

Norden is a lawyer with the Brennan Center for Justice at New York University School of Law, and Creelan is deputy director of the center's Democracy Program.