by Glenn Tschimpke
Staff Writer
Supervisor of Elections John Stafford and the 19 individual City Council members are under fire after their decision to switch from punch card voting machines to optical scan technology.
The American Association of People with Disabilities filed a class action lawsuit against Florida Secretary of State Katherine Harris, Duval County Supervisor of Elections John Stafford and the 19 individual members of the Jacksonville City Council, among others. The suit, filed in U.S. District Court for the Middle District of Florida, claims the current configuration of the optical scan voting machines violates blind and manually impaired voters’ rights to cast a direct and secret ballot.
“The basis of the case, which is brought under the American with Disabilities Act, principally, is that Jacksonville has purchased voting equipment that is not accessible to blind people,” said Lois Williams, attorney with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and co-counsel for the plaintiffs. “The technology is there.”
The Duval County Elections Office is in the process of converting from punch card voting machines to optical scan units to be used in all 268 voting precincts in time for the statewide elections this fall. In an optical scan voting system, each voter is given a form with the list of candidates printed on it. The voter darkens a circle next to each candidate chosen with pen or pencil and the form is then fed into an optical reader, which detects and counts the votes. Visually and manually-impaired voters cannot complete the forms without assistance, thus violating their right to a secret vote, which is the crux of the lawsuit.
In addition, Stafford plans to purchase a handful of touchscreen voting machines to be used only at the Supervisor of Elections headquarters downtown. Touchscreen technology eliminates the paper factor in voting. Voters select each candidate directly through a computer. The lawsuit claims that visually-impaired voters cannot cast a vote without audio assistance. Manually-impaired voters cannot vote without accessories like a puff stick device, which accepts input through a blow tube. Stafford currently has no plans to purchase the audio and puff stick accessories.
The City has filed a motion to dismiss on behalf of City Council member and Stafford.
“Our motion for the Council members, we moved to dismiss it on legislative immunity, which is that they are shielded from lawsuits on the decisions they make. Otherwise, they’d get sued all the time,” said Assistant General Counsel Scott Makar.
Makar explained that City Council had little to do with the selection of the voting machines and were only instrumental in approving funding for the new technology.
“The Council was presented with an appropriations that they approved to buy the voting machines,” he said. “It was a pure legislative act. It wasn’t a debate over the machines. It wasn’t a debate over the technology. It was a simple appropriations bill, which is a purely legislative act. They’re not setting the standards for the machines. They’re not deciding what’s best and what’s not best. They’re just saying, ‘Should we appropriate the money?’ And they decided to appropriate it.”
On behalf of Stafford, who selects only voting machines and vendors approved by the State of Florida, Makar said the visually and manually-impaired have long required assistance while voting under the old punch card ballot system and Florida law condones it. He points to a similar case in Michigan (Nelson v. Miller), in which the 6th Circuit Court ruled that third party voting assistance satisfied ADA requirements.
“Florida Legislature had enacted this statute allowing to enable disabled voters to have this assistance to be able to vote,” he said. “And [Nelson v. Miller] said the State has provided very reasonable and adequate means of allowing the disabled to vote. That’s all the Americans with Disabilities Act requires.”
Florida’s voting assistance program has come under fire before. In 1993, the Department of Justice’s Office of Civil Rights investigated whether Pinellas County’s failure to provide blind voters an electronic method of voting violated the ADA. They issued a letter stating, “Although providing assistance to blind voters does not allow the individual to vote without assistance, it is an effective means on enabling an individual with a vision impairment to cast a ballot. The Supervisor of Elections is not, therefore, required to provide braille ballots or electronic voting in order to enable individuals with vision impairments to vote without assistance.”
Still, Williams would like to see electronic, ADA-compliant accommodations in every precinct so voting assistance is not necessary.
That might have been OK 10 years ago,” she said. “It is not OK anymore. There had been a problem that was not really solvable [with the punch card system]. The technology is definitely there now.” Williams would like to see a touchscreen voting machine in every precinct, each equipped with accessories to accommodate the visually and manually-impaired.
“I don’t think we’re being unreasonable in wanting one per precinct,” she said.
Makar said the lawsuit attempts to rewrite the law into a narrowly-defined corner, which could prove expensive in the future.
“This lawsuit is trying to take the law to a higher level in the sense of requiring a higher standard,” he said. “Here what they want, the plaintiffs, is absolute secrecy. They want the technology that they can be assured with absolute secrecy that no one will know their vote.
“Everyone that’s looked at this has said you don’t need to go beyond what you’re doing. If you’re providing accessible voting technology and you’re providing assistance to the disabled to vote on that technology and you’re minimizing the potential of the violation of the right to a secret vote, you’re not violating the law. You’re doing what you can. You’re doing what’s legally required.”