By Jim Wasserman, Associated Press, July 1, 2004
AP reported yesterday on U.S. District Judge Florence-Marie Cooper's tentative decision to uphold California Secretary of State Kevin Shelley's April 30 decertification orders and recertification requirements and deny a request from disability rights groups and four California counties to issue a temporary restraining order or preliminary injunction to prevent Shelley's orders from taking effect.
Judge Cooper held a hearing this morning in Los Angeles to hear from the plaintiffs and defendants, who responded to her tentative decision. I was not in the courtroom but was able to listen to the proceedings via telephone.
Plaintiffs' attorney John McDermott argued that while the Secretary of State does have the authority, through California statute, to certify and decertify voting systems, that the process through which the Secretary of State does so is not legitimate because there are no regulations to govern the process, only procedures. The judge responded that this argument doesn't appear to help the plaintiffs, because if the decertification order is not valid, then the use of these systems isn't valid either.
McDermott also asked the judge to consider modifying her decision so that some of the recertification conditions would be lifted (specifically, the requirement that vendors provide the Secretary of State with their source code and the requirement that counties give voters who wish to vote on paper at polling places the opportunity to do so).
McDermott also asked the judge to consider modifying her decision by imposing the decertification orders on only a limited number of counties, based on whether there is any evidence of security problems in a given county. McDermott claimed that Riverside County has conducted 29 elections on DREs since November 2000 and asserted that Riverside County's voting system has been "perfect".
Attorney Douglas Woods represented defendant Kevin Shelley. Woods argued that the plaintiff's argument about the lack of regulations for voting systems "proves too much", that if it's not possible to decertify a system it's also not possible to certify one, either. Woods also asked Judge Cooper not to modify the conditions for recertification, since each condition was carefully considered, and that the plaintiffs are asking the judge to "step into the shoes of the Secretary of State". Woods also discouraged the judge from picking and choosing counties that would be impacted by the decertification orders, and noted that all four vendors have agreed to the source code requirement in the recertification order.
Woods said the Secretary of State shouldn't have to wait for a failure to occur before taking action on a security risk. He also pointed out a critical distinction between paperless, electronic voting machines and paper-based, optical scan voting systems. With optical scan systems, Woods said, if there is a failure, there's a piece of paper for each ballot that can be counted and used for a recount, but with DREs this can't be done.
McDermott replied to this argument by telling the judge that there is a piece of paper that is generated by DREs that can be recounted (failing to mention that one of his client counties, Riverside, does not in fact produce the kind of paper audit trail other DRE counties produce at the close of polls that can be used for recounts).
The hearing lasted less than an hour and Judge Cooper asked only a few questions. She indicated that she would have a "busy weekend" so it is likely we will hear her final decision early next week.