ALBANY – Nassau County lacks standing to challenge the constitutionality of the state law that required the replacement of mechanical, levered voting machines with computerized optical scanning devices, an upstate appeals court has decided.

Since the county is legally a creature of the state under the state Constitution, it and all other local government entities “lack capacity to attack actions by the State and the Legislature” except under four narrow exceptions, none of which apply to the computerized voting machine question, the Appellate Division, Third Department panel said in a 4-0 ruling in Matter of County of Nassau v. State of New York, 513425, 513446 and 513649.

The four exceptions to the general rule prohibiting municipal entities from suing the state or the Legislature, as enunciated in City of New York v. State of New York, 86 NY2d 286 (1995), are where there is an express statutory authorization to bring such a suit; where the state legislation adversely affects a municipality’s proprietary interest in a specific fund of monies; where the state statute impinges on municipalities’ “home rule” powers, or where municipalities can show that by complying with the statute they will be violating the state Constitution.

While Nassau County argued before the court that if it is forced to comply with the Election Reform and Modernization Act, the county would be compelled to violate the Constitution, the panel said the county itself is not the entity that implements the elections law. That job is left to the Nassau County Board of Elections (NCBOE), the court pointed out.

“Notably, in this regard, the NCBOE does not act on behalf of the County, but is rather an independent political body separate and distinct from the County,” Presiding Justice Karen Peters (See Profile) wrote for the court in its Nov. 1 decision, citing Matter of Reynolds, 202 NY 430 (1911). “Inasmuch as the County has neither alleged nor demonstrated that it plays any role in implementing the statute it seeks to challenge, it cannot be said that the County itself will be forced to violate a constitutional proscription if obliged to comply with the statute.”

The Third Department also held that John DeGrace, the Republican Board of Elections commissioner in Nassau County who is a plaintiff along with Nassau County, does not have standing to unilaterally maintain the action on behalf of the Nassau board.

Election Law §3-212 requires that all actions by local boards be approved by a majority vote of its commissioners, but the court noted that the Democratic elections commissioner in Nassau County, William Biamonte, had dropped out of the legal action challenging the law. Biamonte’s absence from the case means the Nassau County Board of Elections is not a valid party to the action, the court said.

“As the claims in this proceeding raise issues affecting the NCBOE as a whole, as opposed to those alleging a political imbalance on the NCBOE or otherwise relating to the representational rights of the political parties thereon, the pursuit of the instant appeal is an ‘action’ of the NCBOE requiring approval of a majority of the commissioners,” Peters wrote.

Justices Robert Rose (See Profile), Edward Spain (See Profile) and William McCarthy (See Profile) joined in the Peters’ opinion. Their determination affirmed a June 2011 decision by Albany Supreme Court Justice Michael Lynch (See Profile).

The state enacted the Election Reform and Modernization Act in 2005 in an effort to comply with the Federal Help America Vote Act (HAVA). The new law and state Election Law §7-202 of 2007 required the replacement of all mechanical voting machines with electronic devices where ballots filled out by hand are scanned into computers, which tally the votes automatically.

Some counties balked at introducing the new machines. Nassau County argued that the electronic machines are vulnerable to “hacking, tampering, manipulation and malfunction” and resisted efforts by the Board of Elections to convert the the county’s polling places to the new devices.

Due, in part, to the resistance of Nassau County, the U.S. Department of Justice sued the state Board of Elections and the state in 2006 seeking an injunction requiring compliance with the Help America Vote Act. The state and federal government ultimately reached a settlement for state compliance with the federal law before Northern District Judge Gary Sharpe.

At about the same time, Nassau County sued the state Board of Elections, contending that the new state law was unconstitutional and that the electronic voting devices create the risk of “disenfranchisement and subversion of the democratic process.”

Nassau has been using the machines since 2010.

Paul Collins, a special deputy counsel for the Board of Elections, said the ruling should effectively end the legal challenges to use of the electronic voting devices. He noted that the U.S. Court of Appeals for the Second Circuit in 2010 in United States v. Nassau County Board of Elections, 10-2320-cv, affirmed Sharpe’s order directing the county to comply with the federal and state laws and to use the computerized voting machines.

The Second Circuit said there was nothing in its ruling preventing Nassau County from pursuing its action against the constitutionality of the Election Reform and Modernization Act in state court under the state Constitution.

“I am very pleased that the court accepted our arguments that the Legislature makes the laws, the board carries them out and that the counties are not free to countermand the decision of the Legislature by simply going to court,” said Collins, who defended the state law. “I am also pleased that the court decided that a single elections commissioner cannot litigate on behalf of the entire [county] board. I think this ends the litigation.”

Nassau County Attorney John Ciampoli represented the plaintiffs.

Assistant New York Attorney General Andrew Ayers argued on behalf of the state.

Daniel Fischer of Koley Jessen of Omaha, Neb., appearing pro hac vice, represented voting machine manufacturer Election Systems & Software. The company was granted intervenor status to protect its intellectual property and trade secrets.