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.
Court
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.
Dvorin
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?
21 MR.
VALENTINE: No.
22 THE
COURT: 'Cause we don't know what they
23 are,
do we?
24 MR.
VALENTINE: No.