TRO and PI denied in Benavidez case...

From: Joseph Lorenzo Hall <joehall_at_gmail_dot_com>
Date: Sat Jul 03 2004 - 14:35:12 CDT

(From Kim Alexander's blog... which is a good source of CA voting news)

[By Jim Wasserman, Associated Press, July 1, 2004][1]


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.

Joseph Lorenzo Hall
UC Berkeley, SIMS PhD Student
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Received on Sat Jul 31 23:17:13 2004

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