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Washington Voter Files HAVA Complaint PDF Print Email
By John Gideon, VotersUnite.org and VoteTrustUSA   
April 24, 2006

John Gideon, Executive Director of VotersUnite.org and Information Manager for VoteTrustUSA (pictured at right) has filed a complaint according to the procedure detailed in Section 402 of the Help America Vote Act. The complaint process and Gideon's complaint are detailed below.

 

HAVA Complaint Process

 

Section 402 of the Help America Vote Act requires that every state set-up a complaint process for voter's complaints in regards to any perceived violations of HAVA Title III.

Section 402 states, in part:
(2) Requirements for procedures.--The requirements of this paragraph are as follows:
(A) The procedures shall be uniform and nondiscriminatory.
(B) Under the procedures, any person who believes that there is a violation of any provision of title III (including a violation which has occurred, is occurring, or is about to occur) may file a complaint.
(C) Any complaint filed under the procedures shall be in writing and notarized, and signed and sworn by the person filing the complaint.
(D) The State may consolidate complaints filed under subparagraph (B).
(E) At the request of the complainant, there shall be a hearing on the record.
(F) If, under the procedures, the State determines that there is a violation of any provision of title III, the State shall provide the appropriate remedy.
(G) If, under the procedures, the State determines that there is no violation, the State shall dismiss the complaint and publish the results of the procedures.
(H) NOTE: Deadline; The State shall make a final determination with respect to a complaint prior to the expiration of the 90-day period which begins on the date the complaint is filed, unless the complainant consents to a longer period for making such a determination.
(I) NOTE: Deadline; If the State fails to meet the deadline applicable under subparagraph (H), the complaint shall be resolved within 60 days under alternative dispute resolution procedures established for purposes of this section. NOTE: Records - The record and other materials from any proceedings conducted under the complaint procedures established under this section shall be made available for use under the alternative dispute resolution procedures.
It was with the above in mind that I decided to file a complaint against the Secretary of State of Washington state. In this complaint I allege that they illegally certified the Diebold TSx voting system as it violates Section 301(a)(3) accessibility requirements.

COMPLAINT

A. Summary of Complaint - I allege that the Diebold TSx voting system certified by the Secretary of State of Washington fails to comply with the Help America Vote Act of 2002 (HAVA), Section 301(a)(3). I ask that this system be decertified or conditionally certified so that it cannot be used as a voting system to meet the accessibility mandates of HAVA.

B. This complaint is made pursuant to Section 402(a)(2) of the Help America Vote Act of 2002 (HAVA), P.L. 1070252 and Washington Administrative Code, Chapter 434-263. Briefly, these sections say, " Any person who believes that there is a violation of any provision of Title III, including a violation which has occurred, is occurring, or is about to occur, by any state or local election official may file a complaint with the secretary under this chapter." Also, pursuant to Section 402(a)(2) I request that a public hearing, on the record, be conducted on this matter.

C. Legal Authority Governing Voting System Certification – The Help America Vote Act of 2002 mandates in Section 301(a)(3) that voting systems used in elections for Federal office must be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.

Section 301(a) of HAVA is explained in depth by the Elections Assistance Commission in their advisory entitled, "How to determine if a voting system is compliant with Section 301(a) – a gap analysis between 2002 Voting System Standards and the requirements of Section 301(a)

The 2002 Voluntary Voting Systems Standards are the standards, recognized by HAVA as the standards by which voting systems are tested and certified. Section 2.2.7 specifically relates to accessibility standards.

Title II of the Americans with Disabilities Act ("ADA") provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132 (2000). Only a "qualified individual with a disability" ("QID") -- defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity," § 12131(2) -- is protected by Title II.

RCW 29A.04.037 as enacted at the time of this filing, defines a "Disabled Voter" as  any registered voter who qualifies for special parking privileges under RCW 46.16.381, or who is defined as blind under RCW 74.18.020, or who qualifies to require assistance with voting under RCW 29A.44.240.

RCW 29A.46.130 requires compliance with federal and state requirements, to whit; "In-person disability access voting must be conducted using disability access voting devices at locations that are acceptable and comply with federal and state access requirements."

WAC 434-335-010 (as of the date of the filing of this complaint) states, in part: "In order for a voting system to be certified in Washington state, it must meet the applicable federal standards, comply with Washington state law, and, except for functions or capabilities unique to Washington state, be certified and used in at least one other state.

D. Factual Background and Analysis - On February 01, 2006 the Secretary of State of Washington took the action to certify for use in the State of Washington a voting system that is not "accessible to persons with disabilities as defined by the Americans with Disabilities Act, including physical, visual, and cognitive disabilities, such that the disabled individual can privately and independently receive instruction, make selections, and cast a ballot."

In its "Findings and Recommendations" report as contained in the state certification document, the State Voting Systems Review Panel incorrectly states:
"Section 301 is clear that a range of disabilities must be accommodated but the only standard defining the range included in the section is “nonvisual accessibility for the blind and visually impaired”. The Election Assistance Commission (EAC) Advisory 2005-004 (July 20, 2005) also made it clear that a range of disabilities must be accommodated in referencing the 2002 Voting Systems Standards. However, nowhere in HAVA, the EAC advisory, or the 2002 Voting Systems Standards is there a requirement that manual dexterity disabilities be accommodated with the use of sip’n’puff or tactile pad interfaces."
Regarding the lack of requirement in the 2002 Voting Systems Standards, the above statement is clearly incorrect. In fact the EAC Advisory states that some factors "must be considered in determining accessibility in conformance with Section 301(a)(3) of HAVA". Among those standards that must be considered is Section 2.2.7 of the 2002 Voting System Standards. This section says, "DRE voting systems shall provide, as part of their configuration, the capability to provide access to voters with a broad range of disabilities."

Furthermore, Section 2.2.7.2(f)(1) specifically requires a tactile pad interface:
“For a device with touchscreen or contact-sensitive controls, provide an input method using mechanically operated controls or keys that shall:
1)    Be tactilely discernible without activating the controls or keys;”
The EAC Advisory makes it clear that the 2002 Voting Systems Standards are not the only standards that must be adhered to. HAVA itself provides standards that must be followed. In fact, the advisory was issued precisely for that reason:
"Although the 2002 Voting System Standards set forth measurable standards that predict compliance with some of the Section 301(a) requirements, those standards do not provide sufficient and adequate guidance as to what is required to meet the accessibility requirements of Section 301(a)(3); do not prescribe testable measures for language accessibility required by Section 301(a)(4) of HAVA; and do not prescribe standards that adequately explain the requirements for overvote notification required by Section 301(a)(1) of HAVA. As such, EAC issues the following policy statement to identify the gaps between the 2002 Voting System Standards and the requirements set forth under Section 301(a) of HAVA and to explain what is needed to meet the requirements of Section 301(a) above and beyond the testing requirements established in the 2002 Voting System Standards."
In an email to myself dated 31 August 2005, Brian Hancock, the EAC's ITA Secretariat stated:
"you need to be very careful about the use of the word "standards."  The requirements of Section 301 of HAVA are, in fact, Voting Systems Standards and represent requirements to be met by each voting system used in an election for Federal office.  HAVA does not, of course, detail the specifics of how those standards must be met."
The EAC Advisory clearly states that voters with physical, visual, and cognitive disabilities must be afforded the opportunity to "privately and independently receive instruction, make selections, and cast a ballot."

In arguments before state legislature committees this year the Secretary of State's representatives attempted to open early voting for blind and sight impaired voters only. Speaking contrary to that were advocates for the disabled community who insisted that early voting needed to be inclusive of a larger portion of the disabilities community. The Secretary of State agreed with the advocates and the legislation was amended to be inclusive of voters with disabilities. Now, the state has, by certification of the Diebold TSx, reverted back to a position that will potentially disenfranchise voters with disabilities and certainly will not allow them to vote as guaranteed by the Help America Vote Act; unassisted and in private.

The Help America Vote Act of 2002 and the Americans With Disabilities Acts are inclusive of voters with a wide range of disabilities. The Secretary of State, by certifying a voting system that provides technology for only the blind and sight impaired voters, has taken an exclusionary stance that will ensure a wide range of voters with disabilities are left out of the independent and private voting experience; an experience that they were mandated to receive with the signing of the Help America Vote Act of 2002.
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