The State’s position is that there’s nothing that can be done to stop ERMA because there’s a federal court order requiring that the levers be replaced. That is misleading. The federal court never made a ruling that HAVA requires the levers to be replaced. In fact, HAVA expressly refers to levers among the voting systems that can be used under HAVA if the system complies with HAVA’s minimal requirements (requirements that are far less than NY has required for all of its history).
When the Department of Justice (DoJ) sued NYS in 2006 because we weren’t HAVA-compliant; we weren’t. We only had one ballot marking device (BMD) per county. HAVA requires one BMD per polling site. Our levers are not considered accessible to people with disabilities. But once the State installed BMDs in every polling site (in 2008), we satisfied the one requirement of HAVA the levers couldn’t meet. New York State’s current voting system is compliant with federal election law.
In the federal litigation, the State never argued in support of the levers, supplemented with accessible BMDs, because the State had already enacted ERMA in 2005. The federal court was never asked to make a ruling regarding the levers. Instead NYS entered into an agreement with the DoJ agreeing to do that which ERMA mandates, in accordance with certain deadlines. That agreement was ‘so ordered’ by the court, which is not the same as a court order ruling that the levers must be replaced as a matter of law. This was only a settlement agreement which the State voluntarily entered into, committing to ERMA’s mandates.