"Best fit for all Alabamians"

According to a report in the Montgomery Advertiser, Montgomery County recently announced that its voters will use optical scan voting devices in upcoming elections. Optical scan voting machines utilize a paper ballot similar to the papers school kids use to take standardized tests like the SAT and ACT. The voter marks on the ballot and then the ballot is read by a scanner.

This technology is not new, but has proven to be a very stable method of voting in Alabama. Currently, 64 counties use the devices for election day voting and absentee voting. Another county uses it for its absentee voting but not at polling places.

While these devices have their benefits and have been used successfully, groups have questioned the ability of people with disabilities to use these machines without the assistance of someone else. The Help America Vote Act, passed by Congress in 2002, requires states to implement voting machines by 1 January 2006 that enable people with disabilities to vote like any other citizen: without assistance and in secret.

As stated here by the Disabilities Rights Education and Defense Fund:

"This is a system similar to the standardized tests given in school. The voter marks the appropriate position on the ballot with a number 2 pencil or other approved marking device. The names of the candidates may or may not be printed on the actual ballot, depending on the variety of the system. The ballots are counted on an optical scanning machine, either at the polling place or at a central location.

"Voters who are blind or have vision limitations that interfere with their ability to read cannot use this voting method either independently or privately. Similarly, voters with upper arm limitations may be unable to record their choices privately if they cannot hold a pencil."

Unfortunately, Trey Granger, Montgomery's election director, seems to have a tin ear about the concerns raised by people with disabilities. According to the article in the Advertiser:

"Granger assured [County Commissioner Jiles] Williams the change would not hinder accessibility for different segments of the population.

"'I think optical scan is the right fit for all Alabamians,' Granger said."

Granger's comments are even more surprising since he was formerly the attorney for Secretary of State Nancy Worley and advised her on steps the state must take to comply with the Help America Vote Act. He helped draft the state plan for complying with the federal law. The plan states up front on page 5 that voting systems

" ... shall be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation, including privacy and independence as for other voters."

Granger? Worley? Maybe the comments aren't surprising after all.

What mean this "incarceration"?

The AP reports this story on its wire:

Recent reports of three convicted killers escaping from supervised prison work programs prompted Gov. Bob Riley on Tuesday to bar murderers and other violent offenders from leaving the work release and community work centers to go to jobs.

I thought the purpose of incarcerating convicted murderers and violent criminals is to prevent them from moving about society and thereby protecting the public.

Why are these folks part of a work release program or participating in community work centers? And, if the report is accurate, why is Riley barring them only from leaving the centers? Why isn't he making sure they don't leave the prison?

Just another reason for death penalty advoctes to question the wisdom of sentences of lifetime imprisonment.

Rally 'round Riley, Boys and Girls

Although reports within the state indicate that Alabamians believe that Governor Riley handled Hurricane Katrina pretty well, it appears that one of his party colleagues in Congress is painting a different picture.

CNN reports that at a congressional hearing regarding the response of government to that hurricane

[c]ommittee Chairman Tom Davis, R-Virginia, cautioned against too narrowly assigning blame.

"At the end of the day, I suspect that we'll find that government at all levels failed the people of Louisiana and Mississippi and Alabama and the Gulf Coast," said Davis.

While there probably were mistakes in Alabama's response to the storm (nobody's pefect, you know), we have not heard the same kinds of criticisms of Riley and Alabama's Emergency Management Agency that we have heard from people in our sister states.

Perhaps Alabamians need to let Congressman Davis know how we feel about his dumping Alabama into the cauldron of failure that was stirred up to the west of us. You can contact Mr. Davis here and here

Worley & the Fair Campaign Practices Act

It seems that Nancy Worley (D-New Hope), despite having been a teacher, seems to have either a reading comprehension problem (can't be that, she taught English) or a problem following rules.

Some background first.

The Fair Campaign Practices Act is Alabama's campaign finance disclosure law. It requires candidates to report who gave them money and where they spent their money. With regard to expenditures, it specifically says they must report the name of

each person to whom expenditures have been made . . . within the calendar year in an aggregate amount greater than $100.00, the amount, date and purpose of each expenditure . . . [§17-22A-8(7)]

Apparently, candidates who were interested in using credit cards to pay campaign bills wanted to know how they were to report payments to credit cards. The Attorney General wrote in a 1995 opinion that listing a payment to a credit card company, rather than identifying the multiple payments or purchases, would not comply with the Fair Campaign Practices Act. The AG said that expenditures should not be lumped together under a general entry for a credit card company; they should be listed individually.

The Secretary of State's office has published this information in its Candidate Filing Guide for at least the last two elections (see page 24 of both the 2002 issue and the the 2004 issue).

So what's this have to do with Worley, other than the fact that she is the Secretary of State and the 2004 issue of the Candidate Filing Guide was published under her supervision?

It seems that a review of Worley's campaign finance reports from 1998 to 2004 reveal that she reported payments to credit card companies without providing a breakdown as to who was paid with the credit cards. You can review the applicable pages here, here, here, here, here, here, here, here, here, here, and here.

That's odd, since, as noted above, the Attorney General's opinion came out in 1995 and the Candidate Filing Guide for 2002 (again, see page 24) specifically mentions that expenditures cannot be lumped together as a credit card payment. She ran in 1998 and 2002 and should have been aware of her responsibility. And if she wasn't, well, ignorance is no excuse.

We're talking about approximately $8,300.00 worth of expenditures that Worley has not accounted for between 1998 and 2004. While that's not a large percentage of the total amount of money that went through her campaign during that time frame, it's still several thousands of dollars that Alabama voters have no clue as to who received it. Presumably, Worley spent it on legitimate campaign expenses. But she could have used it for other purposes. Who can tell, based on the public record?

And there may even be more money unaccounted for, since she has several additional entries listed for "BP/Amoco." We can't determine from the record if that's a gas charge card or one of the BP or Amoco Visa accounts that can be used for non-gas purchases at places other than gas stations.

It would be to Worley's credit if she would clarify the entries.

As a bonus discovery, it seems that in 1997 Worley received a contribution from a public school. This page from her annual report covering that year shows a contribution from Frisco City Elementary School. What's up with that? How can a school make a contribution to a partisan candidate for public office? Who has ever heard of such, since state law prohibits the use of public funds for campaign purposes?

Worley: Award Winner!

Well, I'll be. It looks like Nancy Worley has won an award.

Worley and Diebold, Revisited (again)

As discussed here and here, negotiations between Secretary of State Nancy Worley and Diebold, Inc., for the new statewide voter registration database fell through in August.

Worley said the failure to reach an agreement related to her insistence that the State of Alabama own the voter registration database software rather than license it from the vendor. As a result, there's a question as to whether Alabama will fully comply with the federal law requiring the system by the 1 January 2006 deadline.

Worley told The Huntsville Times that the state would be "substantially compliant" by 1 January. However, that is telling. It means that the state will not be fully compliant. In terms of forward progress, I wonder how Worley would define "substantially compliant". I'm also wondering, though, why we won't be fully compliant.

My previous posting on this issue describes the timeline of Worley's decision-making on this issue. It illustrates a breakdown in the process - and more, a breakdown in her management of the Secretary of State's office - that probably had us on a path toward non-compliance regardless of the latest developments regarding the Diebold negotiations.

A newly-obtained document, though, shows that Worley has apparently not been vigorous in protecting the interests of Alabama's voters and has put the state even further behind in meeting the 1 January deadline.

This document shows that Diebold, as of 15 June 2005, indicated its position that the software would be licensed to Alabama, rather than sold to the state. However, Worley didn't discontinue negotiations with Diebold until sometime in August. The document raises some questions that should be answered by Worley.

1) What representation was made by Diebold in its original proposal for the statewide voter registration system? The Request for Proposal (RFP) released by Worley specifically stated that Alabama required ownership of the software to be transferred to the state. Did Diebold meet that requirement in its proposal? If Diebold did not meet that requirement, it should never have been selected to enter contract negotiations.

2) If Diebold stated in its original proposal it would meet the ownership requirement of the RFP, why did Worley not hold the company to it? When Worley received the 15 June document from Diebold, contract negotiations should have been suspended until this ownership issue was resolved. At that time, if Diebold was unwilling to honor the RFP requirement for state ownership, Worley should have cancelled negotiations and selected an alternate vendor from others that submitted proposals. Worley should not have taken approximately two months to determine whether or not Diebold would meet the terms of the RFP, especially with the approaching 1 January deadline.

3) Did any other vendors meet the RFP's ownership requirement? If so, why did Worley release a new RFP, allowing licensing, in August rather than going with another participating vendor? If not, and Diebold indicated in June it would not comply with the ownership requirement, why did Worley not release the new RFP until August?

As important as these questions are, the answers to them - or lack of answers - will not change the fact that Alabama has about three and a half months to implement a new voter registration system statewide. Experienced voter registration officials and computer systems managers question the ability of the vendor and the state to fully implement and debug the new system and train officials to use it by the deadline 1 January deadline. Even Worley admits that she doesn't expect the state to be in full compliance by that deadline.

The federal law requiring this new system was passed by Congress in 2002. The original RFP was released in August of 2003. Therefore, Worley will have had over two years to get this project up and running before the federal deadline.

Ironically, with Worley being up for re-election in 2006, Alabama's voters will not have to wait long to hold her accountable if her mismanagement of this project creates problems with the voter lists next year.

Some thoughts on John Roberts' testimony

He stated, in the context of the eminent domain ruling by the U.S. Supreme Court this year, that the Court merely said that legislatures have to option under the Constitution to take private property to be used for other private development as part of a redevelopment plan. He said the Court is not saying the legislatures of the states or Congress must use that power but rather it is a power that is available to them. He then went on to say that legislatures can be protectors of rights too:

"That leaves the ball in the court of the legislature. And I think it's reflective of what is often the case -- and that people sometimes lose sight of -- that this body and legislative bodies in the states are protectors of the people's rights as well."

The subtext here that is being smoothed over is that the Supreme Court stated that property owners do not have any real property rights when it comes to eminent domain in these circumstances. The Court said it will not recognize any property right on the part of an owner when a city decides a redevelopment plan requires the owner to relinquish ownership of their home.

Basically, he argues that the legislatures may themselves confer such a property right on their citizens if they so choose. However, as I would hope he would acknowledge, a right granted by statute is quite different from a constitutional right.

The Kelo v. New London decision on eminent domain is a perfect example of what John Roberts says the court is not supposed to do: make policy (or, more broadly labeled, "make law").

People on the left or the right are being disingenuous when they saw that judges or justices are merely in the business of interpretting law and should not make law. Granted, it's true, that judges and justices do not pass statutes into law. But, in the very act of interpretting a constitutional or statutory provision, they are deciding public policy that is binding on the citizens of the various states or the nation.

Judge Roberts expressly acknowledges this role of the court:

"Well, I think the framers, when they used broad language like liberty, like due process, like unreasonable with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.

"As they said in the preamble, it was designed to secure the blessings of liberty for their posterity.

"They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages."

Who is to decide how the Constitution should apply in changing conditions? The U.S. Supreme Court justices, of course. And, regardless how you label it, that makes the Court a policymaker.

This method of establishing public policy is far different from the legislative process, since the courts should not create new policies out of whole cloth; a judge's public policy choices are, in theory, constricted by the plain language of the constitution or a statute and judicial precedents. However, in reality, their public policy choices are constrained only by their own understanding of issues involved and the degree to which they are able to subordinate their own ideological preferences to the "rule of law" through a process of rational consideration.

While Judge Roberts isn't necessarily captivating with any of this comments, some of the Senators quizzing him have made some interesting comments. Take this one from Senator Brownback of Kansas:

"... [M]y state is the proud home state host of Brown v. Board of Education."

I'm curious as to what, exactly, he's proud of? Is he proud his state was the one that was sued over - yet defended - discriminatory treatment of its school age citizens? Is he expecting us to find honor in that, since Kansas created the controversy that lead to the court case by which the Supreme Court overturned Plessy v. Ferguson?

Should my own state, Alabama, be proud of the beatings in Selma on Bloody Sunday because that event helped build support for and led to passage of the Voting Rights Act?

Saying Kansas is the "proud home state host of Brown v. Board of Education" distances the state and its people from the events leading up to and including the famous court proceedings that resulted in that momentous decision. It suggests that Kansas had no great role than to be a host for the event, but not a party to the event - and definitely not the losing party at the event.

Did it strike you as odd as it did me that Judge Roberts proclaims no real experience or knowledge related to First Amendment litigation?

"Senator, I haven't dealt with a lot of First Amendment access cases. I studied one about media access to prisons, for example; the issue about whether the media had a right of access to prisons -- they wanted to report on it. And so I'm not terribly familiar with the precise levels of scrutiny that apply." [emphasis added]

And First Amendment litigation is one of the most important areas of litigation covered by the Court.

Double Naught Stuff!

The Huntsville Times reported today that the Department of Public Safety will not provide that newspaper a copy of the video tape showing Senator Curt Lee's early morning escapades in the State Capitol Building. Public Safety will also not release the card key records showing who accessed the Capitol.

Mike Coppage, head of Public Safety, says the tape isn't a public record. But then also claims that even if it was, he believes it is not subject to disclosure because they would reveal "the procedures and methods used to maintain security at these public buildings and their release could compromise that security."

According to the Times report, Jeff Emerson, spokesman for Gov. Bob Riley, said "There are certain security features in the Statehouse and the Capitol complex that we just don't comment on."

Why are these guys acting like the State House and the Capitol are protected by James Bond-style technology?

We know that part of the security features, obviously, are video cameras. The admission that there even is a tape reveals that method. Further, anyone with any common sense can determine where cameras are located in the Capitol complex.

Here's a fun game after you tour the Capitol: Find the camera locations! Pay particular attention to the small, black dome-shaped fixtures mounted on walls and ceilings and (did you miss them) on the outside corners on the tops of selected buildings!

As far as card keys go, admitting there are card keys reveals, again, that method of security. And anyone wanting to know more about it's usage only has to see if a door has a card reader. Not a lot of secrecy there.

Frankly, there's not a lot of sophistication in the security at the Capitol or State House. It's standard fare, from the strategic placement of cameras, selected doors protected by controlled-access locks, and the orange cones in the loading zone meant to repel a terrorist car bombing.

Governor Riley should give up the video tape and quit pretending that everything involving the Capitol has to be a state secret.

Where is My America?

What happened to the American I was raised in?

How did we get to the point that so many Americans justify a failed response on the part of emergency management officials to help those in dire straits from a natural disaster?

I guess "shock" and "awe" are only for rapid deployment of soldiers in the Middle East, not for rapid deployment of responders to natural disasters at home.

From Small Minds

I should not have been surprised, but I was. Fred Barnes, on Fox News Channel's "Special Report w/Brit Hume" made such an asinine comment today (7 September 2005). He said that anyone who did not evacuate from New Orleans before Katrina hit should not be given any federal relief payments or support.

I should be obvious to a man of his alleged intellect that not everyone was capable of leaving. Not everyone in New Orleans owns a car or had enough money to leave and stay in a hotel somewhere. But aside from that, even if these people had evacuated, the damage to their homes would have occurred regardless. Why should assistance for rebuilding be denied to them because they didn't have the means to leave?

Granted, there were some people who stayed who probably could have left. There are always people who will attempt to ride such storms, as there were in New Orleans, other parts of Louisiana, and even in Alabama and Mississippi. But again, why should they be denied assistance? There loss was not in their realm to prevent any more than it was for the people who did evacuate.

Another point from tonight's talking heads. Brian Williams and Chris Matthews, on MSNBC's Hardball, characterized the poor who didn't evacuate as being afriad of losing their government welfare or social security checks. This characterization would be laughable if it weren't so offensive.

You might have had some rare instances in which someone, due to personal conditions, might have weighed their government checks more favorably than their own safety. If so, these were probably people with some mental debilitation.

However, if you know of an interview where someone in reasonably good health and frame of mine claimed to have ridden out the storm so his or her government check wouldn't get lost or stolen, give me a citation by posting a comment.

Worley and the Voter Registration System, II

Nancy Worley indicated to The Huntsville Time reporter that despite the failed effort to contract with Diebold, Inc., Alabama is ahead of other states in complying with the federal mandate for a new statewide voter registration system.

That's a strange assessment, given electionline.org reported over the summer that most states were well on their way in constructing their new databases. Beginning on page 15 of this report, you can read the breakdown of each state's progress.

Of course, electionline.org jumped the gun in stating that Alabama's database "is being built" by Diebold, since no contract had yet been signed between the state and the company.

Worley: The Feds Messed Me Up!

Here's the timeline:

• 12 August 2003 - Secretary of State Nancy Worley releases "Request for Proposals" for new statewide voter registration computer system.


• 26 September 2003 - Deadline for vendors to respond to the "Request for Proposals".
  
• 27 May 2005 - Secretary Worley announces her decision of Diebold, Inc., as the successful vendor to be award the contract for the voter registration system.
  
• August 2005 - Secretary Worley and Diebold are unable to reach agreement on the contract for the new voter registration system due to an issue over licensing versus purchase of the software for the system.
  
• August 2005 - According to The Huntsville Times report on 4 September 2005, Secretary Worley apparently issues a new "Request for Proposals" (RFP). Unlike the original RFP, this modified RFP provides that the state may license the software rather than purchase it.
  
• 1 September 2005 - According to The Huntsville Times report, the deadline for the vendors to submit new responses to the revised RFP.
  

Worley stated that the modified "Request for Proposals" affects only the provision regarding the purchase or licensing of the software from the vendor. And, therefore, that appears to be the only part of the new responses she intends to review. She told The Huntsville Times:

"We don't have to go back and re-read all of the proposals; we've already read them," she said. "We don't have to go back, in my opinion, and have any kind of technical group evaluate the proposals because they've already been evaluated from a technical standpoint."

I wonder if she's having the vendors certify that they are not amending any other part of their response to the RFP. Or was she asking them to submit new information regarding only the licensing/purchasing issue? If they are resubmitting a complete response, then it is incumbent upon her to ensure that no other changes are made in the details of other sections.

Again, though, Nancy Worley has shown her incompetency to handle the business of the Secretary of State:

• From the time she released the RFP, it took her 21 months to announce the vendor who would get the contract.
  
• From the time she announced Diebold as the selected vendor, roughly 3 months passed before she and Diebold determined that Diebold was apparently not planning to comply with the RFP's requirement that ownership of the software be given to the State of Alabama.
  
• When she realized that Diebold was holding firm on the licensing issue, Worley decided to reissue the RFP to allow for licensing.
  
• When she selects a new vendor based on the revised RFP, she will have approximately 4 months to negotiate the contract, purchase computer hardware and have the system installed by 1 January 2006. She negotiated with Diebold for 3 months after selecting them from the original RFP.
  

My questions for Worley: Did the Diebold response to the original RFP specify it would comply with the transfer of ownership of the software to the State of Alabama? If it did, then why did this become an issue during the contract negotiation? If it did not, why did she choose Diebold in the first place?

It appears to me that Worley is trying to clean up a mess she created. In my opinion, she released a flawed RFP: she should have known that major vendors of election software would be unwilling to give up ownership of their intellectual property. Once involved in the contract negotiations with Diebold, that fact suddenly became crystal clear to her.

After discontinuing negotiations with Diebold, she chose to reissue a new RFP allowing for licensing. Does this mean that none of the original respondants were willing to transfer ownership of their software to the State? Or does this mean that Worley is finding a way to ensure that Diebold can get contract?

Robin Foster, the president of the Alabama Board of Registrars Association, told The Huntsville Times that this whole process could have been handled better. The Times indicated that Worley disagreed:

Worley disagreed. "Obviously this has been a flawed process from the federal level," she said, because the government was late in issuing directions for the state.

I'm not sure what the federal government's responsiblity was in this. It appears that Worley is trying to find yet another scapegoat for her mismanagement of the Secretary of State's office, just as she has blamed previous criticism on racism and partisan politics.

Jaded?

So tell me why it is that President Bush was in Florida, handing out ice, 3 days after Hurricane Frances hit that state in 2004, but 3 days after Katrina hit Louisiana, Mississippi and Alabama, Bush is still in DC and there is little assistance in terms of food and water being given to the people left in New Orleans?

Am I jaded, or could Bush's quick attention to Floridians been borne of feelings for Jeb or for the voters in the then-pending presidential election?

Shock and Awe

I am still taken aback by the developments in New Orleans.

Katrina was my sixth hurricane. Hurricanes Ivan, Fran and Opal, however, had a much greater impact on me, personally, giving me first-hand experiences with heavy winds, excessive rain, flooding, downed trees and power outages. Fortunately for me, my experiences were no where near that which has befallen the people of lower Alabama, Mississippi and Louisiana.

I join with many others in focusing my thoughts and prayers on the survivors who have lost so much - loved ones, family homes, cities and communitites.

I disagree with those, though, who do not believe it is time to assess what has happened, especially in New Orleans, to figure out how the impact of a such a major storm could be minimized in the future. Part of that analysis involves taking notice of things that did not happen in the past that could have helped this time around.

As reported here, it appears that the Army Corps of Engineers and Louisiana officials, among others, have been voicing concerns about the levee system around New Orleans for a while now.

My point is not to rehash the arguments in the debate that led to cuts in the proposed funding for strengthening the levees. However, I will make what should be an obvious point, but apparently isn't obvious enough.

Failures occur for two main reasons: 1) a mistake in formulating or executing a program, or 2) incomplete or erroneous knowledge about a prospective problem that affects the formulation of a program. If a failure surfaces because of cause #1, then it is incumbent upon us to acknowledge the mistake so that we can better address similar circumstances in the future.

President Bush (R-Oil Fields), upon reviewing the disaster from aloft Air Force One, made the claim that

"I don't think anybody anticipated the breach of the levees. They did appreciate a serious storm but these levees got breached and as a result much of New Orleans is flooded and now we're having to deal with it and will," he said.

As the article from the Chicago Tribune pointed out, people did anticipate the breech of the levees, at least in the abstract. Of course, no one knew in advance that Katrina would be the abstract made real to the detriment of New Orleans.

The fact that the Bush Administration was aware of the concerns in Louisiana over the levee system but characterized Katrina's damage as "unanticipated" is unconscionable and offensive.

True, nothing can be done to turn back the clock and prevent the damage. The water is under the bridge, or, shall we say, over the levee. That doesn't mean that we, as Americans, shouldn't take stock of the actions by our officials that contributed to the situation in which New Orleans finds itself today.

Sometimes resolving problems requires accountability. And accountability requires pointing fingers.