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Douglas Baldridge represents disabled voters in Duval County, Fla., who won a landmark decision in March when a federal judge ordered the county to obtain electronic voting machines with audio equipment. But Baldridge hasn’t been able to celebrate. A lot has happened since then. The decision in his case was stayed, pending appeal, and he fears the county will delay until after the election. And in April, California’s secretary of state decertified all electronic voting machines in his state, expanding a raging national debate about whether they are reliable and secure-a debate Baldridge and others consider wrongheaded, arguing that paper ballots are more vulnerable to fraud. At the very moment the disabled are poised to embrace full access to the process, the advocates said, it has been withheld, in part due to anxiety about the technology that makes it possible. “It frustrates me, without a doubt,” acknowledged Baldridge, a partner at Washington’s Howrey Simon Arnold & White. “But this war will be won.” His victory in court followed a bench trial in Jacksonville, Fla., last September. In March, Judge Wayne Alley ruled that under regulations implementing the Americans With Disabilities Act (ADA), when Jacksonville purchased new voting equipment in 2002, it was obliged to ensure that it was readily accessible to, and usable by, people with disabilities. The statute specifies that this requirement applies to construction and alteration of public facilities, and “voting equipment plainly falls within the expansive definition of ‘facility,’ ” Alley wrote. The judge ordered Duval County to have at least one machine that allows the visually impaired to vote without assistance at 20% of its polling places. Lawyers on both sides agree it was the first such order in the country. American Association of People with Disabilities v. Glenda E. Hood, No 3:01-CV-1275 (M.D.Fla.). “This is coming,” said Ernst Mueller, who was Jacksonville’s lead trial lawyer. The Help America Vote Act (HAVA) will require all jurisdictions to do what the judge ordered by Jan. 1, 2006, he said. “We were concerned about having to buy equipment for the 2004 elections, and then having to completely revise that equipment or buy new equipment to meet the HAVA standards. That is not a wise use of tax funds.” Regardless of the appeal, Mueller added, the county will have three machines available to the disabled in Jacksonville. Until now, visually and manually impaired voters in Duval County and in most of the country have been able to vote only with the assistance of a third party, either a poll worker or a friend or relative. Some have said that this deprives them of independence, certainty, dignity and the right to a secret ballot. Electronic touch screens allow the manually impaired to vote with implements they can maneuver with their mouths, and the visually impaired to vote with audio hookups. Lawsuits have been brought in Pennsylvania, Maryland, Illinois, Ohio, California and the District of Columbia, according to Jim Dickson, a vice president at the American Association of People with Disabilities (AAPD) in Washington, a plaintiff in several suits. Dickson is blind and a plaintiff in the D.C. suit. In addition to the equipment issue, some lawsuits target the accessibility of polls to people in wheelchairs. Most of the suits have settled, Dickson said, but he’s expecting more. John McDermott, a Howrey partner in Los Angeles, sued four California counties that upgraded voting equipment without making it fully accessible. AADP v. Shelley, No. CV 04-1526 (C.D. Calif.). He also sued Kevin Shelley, the secretary of state who decertified all the available technology. Benavidez v. Shelley, No. CV 04-3318 (C.D. Calif.). McDermott said his argument was strengthened by the recent U.S. Supreme Court decision in Tennessee v. Lane, 124 S. Ct. 1978. Though it concerned access to state courthouses under the ADA, its application to voting rights is clear, he said. He’s citing it in his amended complaint. In his decertification order, Shelley said he was concerned that electronic equipment doesn’t produce a paper audit trail, uses secret code, may be difficult to operate and is subject to tampering.

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