Thornapple Seems to Be Making the Wrong Legal Argument

A little town fighting for the right to hand-count does not seem to have a good strategy.

Last week, this Bravado Brief reported on a town in Wisconsin fighting for the right to hand-count. After further research, it appears Thornapple (Thornapple’s counsel) is making the wrong legal argument and pursuing a bizarrely anemic approach to litigating a case that affects not just Thornapple but hand-counting efforts nation-wide.    

Thornapple’s argument is that a paper ballot system is not a “voting system” as defined by the Help America Vote Act (“HAVA”).  But a thorough review of Section 301 of HAVA suggests the government and the district court are correct—a paper ballot system is manifestly covered by the definition of “voting system” in HAVA. 

The key, however, is that 52 U.S.C. § 21081(a)(3)(B) does not require “at least one direct recording electronic voting system.”   52 U.S.C. § 21081(a)(3)(B) provides an alternative option. It states that a jurisdiction can:

satisfy the requirement of subparagraph (A) through the use of at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place. (emphasis added)

The or in that sentence is critical. To satisfy the statute, a jurisdiction must use an electronic machine OR other voting system.  The government spent an entire brief explaining that “voting system” includes paper ballot systems.  The Wisconsin statutes cited by Thornapple are illustrative of ways one could satisfy the federal statute without the use of an electronic machine.

Crucially, HAVA also has an explicit provision that defends paper ballot systems:

(2) Protection of paper ballot voting systems

For purposes of subsection (a)(1)(A)(i), the term “verify” may not be defined in a manner that makes it impossible for a paper ballot voting system to meet the requirements of such subsection or to be modified to meet such requirements.

In short, when Congress passed HAVA, electronic machines were not in use across the United States.  Although the purpose of HAVA was clearly to move states toward electronic machines, it was not a ban on a paper ballot system, and someone or some group of persons in Congress felt strongly enough about protecting the paper ballot system that they included this explicit protection. 

The Thornapple case is not entirely open and shut, because there is the problem of language in HAVA that says the disabled need to be able to vote with the same privacy as those who are not disabled.  This is not an insurmountable counter-point, though. What is perhaps most concerning is actually the manner in which this case has been litigated by Thornapple’s counsel.

Thornapple filed a 10-page motion to dismiss—that’s inclusive of the signature page.  For those who are not lawyers, this is a shockingly short motion for a case of this nature. To add further perplexing layers, Thornapple failed to reply at all to the government’s Motion for a Preliminary Injunction (a motion it then lost), and although counsel has advised the court that Thornapple intends to file an appeal, no notice of appeal has been forthcoming. 

Bravado America President Molly McCann Sanders has called each of the three lawyers representing Thornapple (two from Husch Blackwell and one from the America First Policy Institute) but has not received a reply. It would be wonderful to find out there is a plan here or a strategy of some kind, but from the outside, this does not feel like a case that is being litigated to win.

To conclude, the government is right that “voting system” as defined by HAVA includes paper ballots, but HAVA does not mandate at least one electronic machine in every polling location.  Such a construction is contrary to the plain reading of the statute, which includes an alternative to an electronic machine, and is contrary to Congress’s explicit purpose, as elucidated in the provision on construing the statute to protect paper ballot systems.

Bravado America will continue to monitor and report on this case.

If you would like to read the filings in this case, you can find them on Bravado America’s website for free here.

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