An election fraud classic Ah, for the good old days of Diebold...

If you're just tuning in to the Cuyahoga County electronic voting reality show, here's what you've missed: Late last year, Ohio Secretary of State Jennifer Brunner leaned on the Cuyahoga County Board of Elections to ditch the expensive Diebold touch-screen machines it's used in recent years in favor of a central-count optical-scan system (which relies on good old-fashioned paper ballots). And when the BOE members split on the issue, Brunner was able to cast the tie-breaking vote, forcing the change.

With a primary coming up on March 4, that would have been difficult enough. But on Jan. 17 it got even dicier, with the American Civil Liberties Union making good on earlier threats to sue the Board of Elections, the Cuyahoga County commissioners and the Secretary of State in federal court. At issue is whether the switch from touch-screen voting machines to a central-count optical-scanning system illegally deprives Cuyahoga County voters the chance to correct ballot errors. The ACLU says it does.

Government attorneys fired back, saying that the ACLU was making "misleading or inaccurate legal conclusions." Voter notification will be provided, government officials assert, through exhaustive and expensive voter education and outreach.

But on Monday the ACLU asked for an injunction against the central-count system. Hearings between the two sides are scheduled for Feb. 5 - four weeks before election day, March 4. Any judgment in favor of the ACLU would throw Cuyahoga County's election preparations into a tailspin, but for now, election officials are proceeding as though nothing will change.

"Unless we're told otherwise by a federal judge," says CCBOE Director Jane Platten, "we're planning to execute the March primary on the central-count system."

"There's no contingency plan," adds Patrick Gallaway, Brunner's spokesman.

Touch-screen voting machines are controversial (they're widely considered too easily hacked or tampered with), but they can alert voters immediately to mistakes - such as casting too many votes or noneÊin a given raceÊ- that might otherwise lead to the entire ballot being thrown out.

In a central-count scan system, voters use paper ballots, which are then taken from polling places to a central location and scanned. There is no machine at the polling place to warn voters of overvotes or undervotes.

One week after Brunner's decision in December, vendor ES&S started delivering 15 central-count scanners to Cuyahoga County, to be leased for just under $1 million, according to estimates made by CCBOE staff. (A contract with county commissioners has yet to be signed.)

The creation of 4,300 different ballots had to begin (because this election will have separate ballots for Democrats and Republicans, in addition to races that will be precinct-specific with nearly 1,500 precincts in Cuyahoga County). Platten put 20 full-time board workers on the job, and asked ES&S for a high-level ballot technician. By Jan. 5, Platten and her team were off and running.

But that was two days after ACLU's third warning that it might take the matter to court. The ACLU argued that if voters elsewhere could use voting technology that notifies them of ballot errors, like the touch screens in Lorain County or Allen County's precinct-based optical scanners, but Cuyahoga County voters could not, this would amount to a violation of the US Constitution's Equal Protection Clause.

Furthermore, because higher error rates have been documented in African-American precincts, non-notice technology would disproportionately affect minority communities and run afoul of the Voting Rights Act of 1965, which outlaws discriminatory voting practices.

It is these two questions in particular that will for the first time be decided in Ohio through the ACLU's federal lawsuit. (A similar case in 2004, against then-Secretary of State Ken Blackwell and the entire state's punch-card system, was rendered moot when Ohio's 88 counties switched to either touch-screen or precinct-based scanning technology.)

Brunner has dismissed the ACLU's claims as tardy and without merit. Ohio Attorney General Marc Dann, along with CCBOE attorney Bill Mason, maintain that central-scan systems do not violate of federal law or the more recent 2002 Help America Vote Act (HAVA) as long as each voter is notified of how mistakes can occur and is given clear instructions on how to make corrections by getting a replacement ballot. (Cuyahoga County has about 1 million registered voters, but will print 1.8 million ballots.)

If the county's 6,500 touch-screen machines were going to be used for the March 4 primary, they would have been dusted off and readied for diagnostic and logic and accuracy testing as of Jan. 30. Delivery to polling locations would have begun on Feb. 18. But on Jan. 7, just as Attorney General Dann signed and sealed his response to the ACLU, BOE Director Platten moved the touch-screen machines into storage.

Platten prefers not to discuss the ACLU's lawsuit, or what it might mean for the March 4 election. She's focused on yet another proof of the optical-scan ballots - four so far - and the essential voter education plan.

The community outreach budget has been doubled, from $125,000 to $252,000. There will be the traditional voter outreach through public service announcements on TV, radio, the CCBOE's own Web site and municipal cable stations and partnering with local voter advocate groups like the League of Women Voters. The BOE also will hold a series of presentations at community centers across the county.

But now each registered voter also will receive materials designed specifically to teach them about central-count optical-scan voting and its pros and cons. Direct- mail flyers will be sent to every registered voter; a brochure and postcard will serve as optical-scan voting guides and be handed out on election day; every polling location will have signs that demonstrate how to fill out optical-scan ballots; each voting booth will contain laminated posters with the same message; and finally, the ballot box itself will warn voters to check their ballots for accuracy before they drop it in.

Will it work? While even CCBOE Chairman Jeff Hastings isn't sure, voter education remains a centerpiece of the government's argument against the ACLU.

Hastings, back in December, was one of two board members to express concern over adequate voter notification in whatever new technology Cuyahoga County adopted. He voted against moving to central-count optical scanners, but now must help board staff implement the switch. "Our position is, we are well into rolling out the central-count optical-scan system, and we just don't have time to change systems midstream again." Hastings says the board plans to measure these voter education efforts.

Fellow board member Sandy McNair, who voted in favor of central scanners, wanted to randomly deploy 60 precinct-based scanners in order to compare precinct-scanning to voter education. This pilot proposal, however, was ruled out by staff concerned about the timing and poll-worker training issues already associated with a switch to a central-scan system. It's also possible this could have opened another area of legal complaint under the Equal Protection Clause.

Nevertheless, Hastings says quantifiable data will be available. For one, he says he'll want to know how many voters were reached through mailings, presentations and on election day. Then he wants to look at post-election error rates and compare these to past elections.

That is, if Cuyahoga County has a chance to find anything out in the first place.