EXCERPTS FROM THE TRANSCRIPT OF the December 20, 2007 HEARING BEFORE Judge Sharpe in the case U.S. v NYS BOE 06cv263 in NDNY
2 MR. CLINES: Good morning, Judge. Thanks for
3 the opportunity to address the Court on this, and I want to
4 state to the Court that we're not seeking to needlessly
5 complicate the proceedings here. If there were a way that
6 we could not be involved in this, we would love not to be
7 involved in this debacle, but however way you slice it,
8 Nassau County and the other local Boards are the ones that
9 are gonna be carrying out whatever enforcement order this
10 Court eventually issues. And we just can't --
11 THE COURT: But you don't speak on behalf of
12 all County Boards, do you?
13 MR. CLINES: No, but we are similarly
14 situated, Judge.
15 THE COURT: Did you see the amicus brief
16 filed with me by Chemung, Washington, Schenectady and the
17 other counties?
18 MR. CLINES: I have taken a look at them. I
19 can't say I have committed them all to memory and I do know
20 there are differences between large and small counties. But
21 there are many downstate counties similarly situated to us.
22 THE COURT: You certainly have to recognize
23 that difference, don't you, because your biggest complaint
24 is you can't comply with the fall of 2008. They all say,
25 "Judge, if you will just order the State Board of Elections
1 to do what they were supposed to do 16 months ago, we'll
2 comply by the fall of this year."
3 MR. CLINES: But -- I understand, Judge, but
4 the reality is that we have 860,000 voters, where some of
5 these upstate counties have a fraction of that, and even our
6 number of voters pales in comparison to the City of New
7 York.
10 MR. HEFFERNAN: I think, after this recent
11 colloquy, not much. But, first of all, your Honor, the
12 claim by the State Board that it doesn't basically run state
13 elections is really crazy. I mean, state law makes it very
14 clear that it's the Board that's in charge of the elections
15 in the state. The State has to control its own elections.
16 And so to make a claim, as it does, that it's unable to
17 carry out HAVA and that it doesn't have the statutory
18 ability to control the elections, in our view, is absurd.
9 Finally, one last thing, money. Your Honor,
10 the money that New York is sitting on right now, and I think
11 it's 98.5 percent of the $220 million that they got from the
12 federal government, is in the state treasury, appropriated
13 by the State, doesn't belong to the counties, it was given
14 by the federal government to the State upon application
15 under HAVA to do certain things pursuant to a State HAVA
16 plan that the State developed, and those funds were given to
17 the State to carry out federal law, to carry out HAVA, to
18 take action consistent with what is going on, what HAVA
19 requires. So, it's not county money, it's State money.
20 It's supposed to be taken and supposed to fund things to
21 comply with the law. There is no compliance now.
22 And along those lines, and it's somewhat
8 MR. HEFFERNAN: -- to March -- to the first
9 federal election after March 2008. So, at this point, if
10 HAVA is not complied with, if lever machines are not
11 replaced by next September, which is the first federal
12 election after March 2008 in New York, New York stands to
13 lose $50 million. So, I don't quite understand where Nassau
14 County's concern about money comes in because they are
15 arguing, basically, for noncompliance. To a large extent,
16 it's arguing against its interest, it's arguing in favor of
17 losing the money the State stands to lose if it doesn't have
18 lever machines replaced by September of '08.
15 Let's take up the enforcement action. In
16 part, we've already done that. I want to understand the
17 State Board of Elections. I'm not happy with the State
18 Board of Elections. Now, let me say it in this fashion: To
19 the extent the State Board of Elections points to things in
20 State Law that have prevented them from doing one thing or
21 another, a piece of legislation perhaps, or an executive
22 decision by some other portion of the executive branch, I
23 understand why somebody in the shoes of the Commissioners of
24 the State Board of Election find themselves in a catch 22 as
25 they see it between State Law and federal law. I
1 understand, under the law of preemption, what the obligation
2 of a Court is, in terms of stacking up a piece of
3 legislation statewide and federalwide, and its obligation to
4 analyze it under the preemption doctrine, to leave in place
5 so much of the legislation as is not preempted, to the
6 extent it might or might not impede the federal legislation.
7 So that can get confusing over whatever the piece of
8 legislation is you're considering.
10 Compliance is gonna happen. The question is how am I gonna
11 make it happen? You think about that for a second. And I
12 am gonna put the bullet behind ya there. What's the State
13 want to tell me about all of this? Why shouldn't I appoint
14 the Governor as a Special Master and make him put the system
15 in place?
20 MR. DVORIN: At the risk of endangering
21 myself here, I really have to point to the problems, and
22 that is a critical problem that the Board faced, it was
23 dealing with an Independent Testing Agency that the EAC knew
24 had problems, that the EAC was looking at, and the EAC
25 didn't tell the Board for many months what was going on, and
1 once the EAC fully assessed that testing agency, determined
2 that it was not qualified, that it could not be certified.
3 At that point, New York was in no position to do anything
4 other -- the Board was in no position to do anything other
5 than look for a new testing agency. I don't think
6 Mr. Heffernan disputes that.
10 MR. DVORIN: But the way that New York is
11 constitutionally structured and statutorily structured, it
12 is, in fact, vested with the ward. I mean, the State of New
13 York stands ready, through the Governor, to involve itself,
14 in whatever extent it can, to expedite the process.
15 THE COURT: Does the Governor have the power
16 to pick new Commissioners?
Regarding decertification of machines in other states under the EAC 2005 guidelines:
5 THE COURT: All 49 states, includin'
6 California, with Stamford and all those universities out
7 there, they're all stupid compared to New York? Be careful
8 with that argument.
9 MR. DVORIN: Well, I would say New York's
10 probably the best, but it's not really a point of casting
11 blame or whether they -- you know, they acted too quickly.
12 It's what happened. They didn't have that experience.
13 THE COURT: But you understand, don't you,
14 that, from my perspective, those are all arguments as to why
15 we, in New York, have not complied with Federal Law. And
16 I've already told ya noncompliance with Federal Law is not
17 an option.
7 We keep talking about the deadlines. To, at
8 this point, grant a remedy that, for the sake of, let's say,
9 implementing in 2008 is at odds with the purpose of HAVA,
10 what was the purpose of HAVA? HAVA was a reaction to the
11 2000 election, the "debacle," to use Mr. Clines' word, of
12 the 2000 election. That's why it was passed.
5 THE COURT: Not two plans, not three plans,
6 not a left plan, a right plan, a Republican plan, a
7 Democratic plan. Submit to me a single plan within 10 days
8 or else. The jail doors will swing open.
In regards to BOE meeting so-called Federal Standards:
12 THE COURT: Have you met that? Do the plan B
13 machines meet the federal standard?
14 MR. VALENTINE: Actually, none of the
15 machines that are in use in the United States have been
16 certified to the current federal standards that are in
17 force. None of them meet that. No machine in the United
18 States meets those federal standards.
19 THE COURT: Do the machines in place in the
20 United States meet the standards that will be set in 2010?
22 THE COURT: 'Cause we don't know what they
23 are, do we?