Voting act puts counties in bind
By Kevin Yamamura Sacramento Bee    January 2, 2006

Mikel Haas is running out of time and patience, but he says he'll give it one more month before he really starts to panic.

With an April 11 special election fast approaching, the San Diego County registrar of voters still doesn't have any California-certified machines to meet the requirements of the 2002 U.S. Help America Vote Act.

 
 Most counties in California - and many across the country - officially fell out of compliance Sunday with rules mandating that election systems be accessible to voters with disabilities. But the San Diego County special election puts Haas at the head of the line when it comes to compliance.

While the legal deadline has passed, Secretary of State Bruce McPherson has tried to assure county officials and voters that California will resolve its Help America Vote Act issues by the June primary, the first statewide election with federal races.

But McPherson has not certified any new accessible voting machines since August, making some registrars nervous and others downright angry.

"He says we'll be ready by June, but I think there's a lack of understanding that June is here now," said Conny McCormack, president of the California Association of Clerks and Election Officials. "It takes months to prepare for an election. We don't have equipment in our offices because it hasn't been ordered or can't be ordered."

For his part, McPherson said at a conference last month that he does not want to sacrifice testing of elections equipment for the sake of meeting a deadline.

McPherson's spokeswoman, Jennifer Kerns, said that at least six election systems are "in the pipeline" and that McPherson is confident multiple options will be available for the June primary.

But registrars like Haas are torn. They say they respect McPherson's need to put controversial equipment through a battery of tests. But they also face the practical need of having to run an election in a matter of months.

"It's a squeeze," said Haas, who is preparing for a special election to replace U.S. Rep. Randy "Duke" Cunningham, who resigned in November after he was convicted of accepting bribes from defense contractors. "Registrars and county clerks are in a squeeze because we're going to be held accountable for an election. We're dying for the tools."

California has certified only one accessible voting machine for the June primary - the AutoMARK made by Omaha, Neb.-based Election Systems & Software. At least a dozen California counties are expected to use the system, including Sacramento, said ES&S spokesman Ken Fields.

The Associated Press reported last week that McPherson's office threatened in November to decertify ES&S because of potential flaws, but Kerns said the company has since resolved the state's concerns.

A second accessible machine, made by Oakland-based Sequoia Voting Systems, has been certified for use in California's general elections but not its primaries due to a problem in reporting crossover ions by independent voters.

Sequoia has created software to correct the problem, but it is awaiting approval from federal officials before it tries to obtain California certification. Spokeswoman Michelle Shafer said she expects the state's 15 counties with Sequoia equipment to be able to use it by the June election.

The remaining counties in California have yet to their equipment or have chosen another company. At least 17 counties have purchased or plan to use equipment from Diebold Elections Systems of Allen, Texas.

In 2004, then-Secretary of State Kevin Shelley decertified all touch-screen voting machines, saying malfunctions in that year's March primary had "shaken public confidence."

Diebold has tried to win recertification ever since. The company failed an Election Day simulation last summer, but it had better success in a subsequent test in San Diego County.

That led to a secretary of state staff report in November recommending that Diebold be certified. But after a contentious hearing in Sacramento filled with electronic-voting opponents, McPherson announced he would first hire a computer hacker to perform a security review.

"Diebold is very confident we will be certified," said Diebold marketing director Mark Radke. "We have gone through every test the state has asked of us."

In November, McPherson said he had hoped to make a decision on Diebold by Jan. 1 or shortly thereafter. But on Dec. 20, his staff members told Diebold to send its memory cards back to federal independent testing authorities to review internal codes that had not been examined.

"Things can change from day to day during the testing process," Kerns said. "Different things are uncovered, and different things come up as a concern."

The uncertainty has caused registrars in counties planning to use Diebold machines to grow frustrated.

Last week, Kern County Registrar of Voters Ann Barnett sent a blistering letter to McPherson. The Dec. 27 letter, which McCormack provided to The Bee, called McPherson's office "an obstruction to our ability to adequately implement new election systems and to prepare for a complex primary election."

McPherson held a conference call soon afterward with 18 registrars in an attempt to appease their concerns. But McCormack, also the Los Angeles County registrar of voters, said she remained dissatisfied.

El Dorado County plans to purchase more than 100 new Diebold machines to meet federal requirements.

Sacramento County already is using ES&S and Yolo County is negotiating to do the same. Placer County has not decided what to use this year, and Clerk-Recorder Jim McCauley said he hopes to have new systems in place by the end of 2006.

As McPherson reviews Diebold, he faces mounting criticism from electronic-voting opponents and one potential Democratic opponent in his own 2006 race, state Sen. Debra Bowen, D-Marina del Rey.

Some registrars suggest that the criticism has led to McPherson's protracted review process of Diebold.

But McPherson aides insist they are only trying to ensure new voting equipment is as secure and accurate as possible.

Kim Alexander, president of the California Voter Foundation, praised McPherson for delaying certification, because she said he has uncovered serious concerns with Diebold.

California is not alone in missing the Help America Vote Act accessibility deadline. Some 21 states will be out of compliance, according to Dan Seligson, editor of Electionline.org, a nonpartisan organization tracking election reform.

"We think the next step will be that states will provide their various explanations to the (U.S.) Department of Justice for why they're missing the deadline," he said. "Those explanations in California will be fairly straightforward, and we're assuming the Department of Justice will acknowledge a best effort given and then nothing will happen."

McPherson recently has pointed to a November agreement with the U.S. Department of Justice to establish a statewide voter database as an example of California's strong relationship with federal officials. The database is another Jan. 1 Help America Vote Act requirement.

If accessible equipment is not in place by the next federal election in California, Seligson said the Justice Department or private groups representing voters with disabilities could sue McPherson or counties.

That's one of the biggest fears for registrars such as William Schultz of El Dorado County, which still has to replace its outdated punch-card machines.

"It puts every county in this state in an untenable position," Schultz said. "What we'll do, we don't know."