The state has yet to decide what kind of new voting machines it will certify, leaving many local elections boards in uncertainty as they try to modernize their voting systems in time for next fall's primary elections. The state missed the Jan. 1 deadline for creating a statewide database of registered voters, as required by the federal Help America Vote Act.

New York is behind all other states and territories in deciding how to spend its share of $2.3 billion in federal aid to modernize voting machines and other elections technology. So far the state has received $220 million to replace its 20,000 aging voting machines, train local election officials to use the new machines, and create the voter database. The money is unspent and collecting interest, officials say.

A Justice Department letter told state officials this week that it had authorized a lawsuit against New York for failing to comply with the law. The letter said that the department hoped to settle the matter by negotiating a court order with the state instead going to court, but that "we are prepared to file a complaint if the matter is not resolved expeditiously."

Wan J. Kim, the assistant attorney general for the Justice Department's civil rights division, wrote in the letter that "it is clear that New York is not close to approaching full H.A.V.A. compliance and, in our view, is further behind in that regard than any other state in the country." A copy of the letter was given to The New York Times by someone who believes the state has been too slow to overhaul its system.

In spite of the federal government's repeated failures to meet statutory deadlines imposed by the Help America Vote Act of 2002 (HAVA), the U.S. Department of Justice has declared that the States must meet their HAVA deadlines, even without the HAVA-mandated research and guidance intended to help the States comply with HAVA wisely.

HAVA requires the Federal Election Assistance Commission (EAC) to develop guidance on voting systems standards by January 1, 2004. The standards were intended to guide the States as they upgraded their election equipment to meet the HAVA Section 301 requirements by the January 1, 2006 deadline.

In violation of HAVA, the President delayed the appointment of the members of the EAC for more than nine months after the HAVA deadline — two weeks before the statutory deadline for providing the voting system standards. Furthermore, HAVA authorized up to $10 million for each year from 2003 to 2005 for the EAC to carry out its duties. However, only $2 million was appropriated for 2003 and the EAC was not formed in time to use the funds. Only $1.2 million was appropriated for 2004. "The total operating budget for Fiscal Year (FY) 2004 was just $1.2 million."

"All four of us had to work without staff, without offices, without resources. I don't think our sense of personal obligation has been matched by a corresponding sense of commitment to real reform from the federal government," Soaries told The Associated Press.

Soaries is a Republican who was the White House's pick to join the Election Assistance Commission, which was created by the Help America Vote Act of 2002 to help states enact voting reforms.
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Soaries and the other commissioners complained from the beginning that the commission was underfunded and neglected by the federal lawmakers who created it.

"By moving quickly to certify precinct based optical scan [PBOS] voting systems which have already been federally approved New York State can be in full compliance with HAVA requirements." said Aimee Allaud, Elections/Government Specialist of the League of Women Voters of New York State. "PBOS voting systems with the addition of a ballot marker will provide secure, accurate, recountable and accessible voting. DREs currently being demonstrated in NYS cannot, at present, meet that standard."

"The impending action by the Department of Justice to enforce HAVA compliance makes it urgent that New York adopt optical scanners now." said Bo Lipari, Executive Director of New Yorkers for Verified Voting. "If the DOJ action results in New York's loss of HAVA equipment funding, we would still be required to replace lever machines. But without HAVA funds, New York's taxpayers will pay the full purchase cost out of their own pockets. Adopting optical scanners rather than touchscreen voting machines will save New Yorkers over $100 million dollars in acquisition costs. There are many excellent reasons for adopting scanners. More than ever, the scanner alternative has become a no-brainer."