Fairness the ballot box: several high-profile cases claim that citizens who use inferior voting machines are disenfranchised when others vote with state-of-the-art technology. These cases ask: what good is the right to vote if every ballot isn't counted?

On December 12, 2000, in one of the most dramatic and important decisions in American history, the Supreme Court in Bush v. Gore ordered an end to the counting of uncounted ballots in Florida and thus decided the presidential election. (1) The Court held that counting the ballots without preexisting standards violated equal protection because of the risk that similar ballots would be treated differently. The Court explained that "having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another." (2)

Because Bush v. Gore held that treating otherwise similar voters in a state differently denies equal protection, the decision is central in challenging other intra-state differences in voting practices. In most states, counties choose what voting machines to use, and the reliability of this technology varies tremendously.

Bush v. Gore pointed to the problems with punch-card voting machines, which prevent a significant number of ballots from being counted because of errors such as "hanging chads." Bush v. Gore provides the impetus for challenges to using this imperfect technology in some counties in a state when other counties are using much better machines.

Already, such challenges have been brought in California, Florida, Georgia, Illinois, Missouri, and Ohio. The California suit attracted national attention when a panel of the Ninth Circuit enjoined the state's recall election because different counties used different voting machines. (3) Eight days later, however, the full Ninth Circuit unanimously overruled the panel decision and allowed the election to go forward. (4)

As the 2004 presidential election approaches, similar suits are likely to be brought across the country. What are the factual and legal bases for such suits? What are their merits and their chances for success?

Ballot technology

Five major types of voting systems are currently used around the country:

* In some places, paper ballots are still hand-marked and hand-counted.

* Punch-card machines use long, relatively heavy paper ballots scored with columns of small, perforated rectangles known as chads. Once inside the voting booth, the voter inserts the card into a slot and then uses a metal stylus to punch out the rectangle on the card next to the candidate or ballot measure of choice, listed either on the ballot itself or in a separate booklet. If the booklet-type ballot is not placed in the correct location in the slot, then the candidates' names or ballot measures will not line up properly with the rectangles that must be removed to register a vote.

Also, because the candidates' names and ballot-measure identifiers do not appear on booklet-type punch-card ballots, voters may not be able to tell from a visual inspection if they cast their votes as they intended.

In addition, pressing the stylus against the pre-scored rectangle sometimes does not cause the chad to be removed completely--producing the so-called hanging chad--which may result in the vote not being counted. Nor is there any protection against the voter "overvoting" by casting more than one vote for a particular office or ballot measure, or neglecting to turn the ballot over to vote on the other side. Sometimes either or both occur by accident, with the voter not realizing what has happened.

* Optical scan systems (also referred to as "Mark Sense" systems) count rotes like answers on a standardizcd test. The ballot lists the names of the candidates and any ballot measures. Next to each choice is either a small circle or an arrow with a gap. The voter must darken the circle next to the preferred candidate or measure or draw a straight line connecting the two parts of the arrow. The ballot is then placed in a box and later counted with an optical scanner.

* Touch-screen voting machines (also known as direct-recording electronic devices or DREs) resemble ATM machines. Inside the voting booth, the voter touches the name of the candidate or the ballot measure on an electronic screen to register his or her preference. Typically, the voter may review the entire ballot to check the votes cast. It is not possible to vote twice for the same office or measure. The computer rallies the votes and sends them to a central location.

* Voting machines that require the voter to pull a lever usually give him or her a choice between pulling one lever to vote a straight party ticket or pulling separate levers for each race.

Punch cards and equal protection

These five voting systems differ markedly in their propensity to record voters' intentions accurately and reliably. Punch-card systems are by far the worst.

For example, in recent California litigation, Henry Brady, professor of political science and public policy at the University of California, Berkeley, noted that punch-card machines fail to read, on average, 2.25 percent of all ballots cast, whereas optical scan machines and electronic voting machines fail to read less than 1 percent of ballots. (5) Brady concluded that punch-card machines don't count 1.34 percent of the ballots that would be counted with other systems. (6)

In the California recall election, he projected, based on past experience, that punch-card machines "will throw away about 40,000 votes," with most discards "heavily concentrated in minority areas." (7) In an analysis after the recall vote, Brady discovered that almost 180,000 votes were lost as a result of punch-card systems. Many were in areas with large minority populations. (8)

These disparities exist wherever punch-card machines are used. For example, an Illinois court found that replacing these machines with newer systems reduced the ballot-counting error rate from over 4 percent to less than 0.33 percent. (9)

Public awareness resulting from the Florida debacle after the 2000 presidential election did nothing to improve the performance of punch-card systems. Though some, as Brady pointed out, might have believed that the system would have been improved "through a combination of voter awareness and increased diligence by election officials," it has not.

For example, in the eight California counties that used punch cards in the 2002 gubernatorial election, 4.04 percent of votes were not counted--a worse performance than the 3.72 percent of votes not counted in those counties in 1998. The four California counties that changed from punch-card systems to new systems in 2002 decreased the percentage of votes not counted from 3.25 to 2.37. (10)

If a state uses punch-card machines in some counties but newer technology in others, there is a basis for a strong legal challenge. The disparity in the machines' performance violates the right to vote and denies equal protection to those whose ballots are not counted.

As the U.S. Supreme Court explained in Gray v. Sanders, "The Court has consistently recognized that all qualified voters have a constitutionally protected right to cast their ballots and have them counted.... Every voter's vote is entitled to be counted once. It must be correctly counted and reported." (11)

The higher error rate of punch-card machines means that voters who use them are arbitrarily treated differently from voters fortunate enough to vote with more reliable machines. As the Court noted in Harper v. Virginia State Board of Elections, "[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment." (12)

In Bush v. Gore, the Supreme Court found that equal protection would be violated if uncounted rotes in Florida were later counted without preset standards. The Court's concern was that similarly situated voters would be treated differently.

Yet, that is exactly the effect of using different machines within a state: Two voters, in every other way identical, have very different chances of having their votes counted if one lives in a county using punch-card machines and the other lives in one using a more reliable voting system. As a federal district court in Illinois observed, "That people in different counties have significantly different probabilities of having their votes counted, solely because of the nature of the system used in their jurisdiction ... does not afford the 'equal dignity owed to each voter.'" (13)

There is also strong evidence that punch-card systems discriminate against minority voters. In many states, counties using these systems have substantially more citizens of color than counties using other systems. This is often because predominately minority counties are poorer and cannot afford newer voting machines.

Any voting practice that ensures rotes cast by minorities are less likely to be counted than votes cast by whites violates [section] 2 of the Voting Rights Act. (14) As the Supreme Court explained almost two decades ago, [section] 2 prohibits "any practices or procedures which result in the denial or abridgement of the right to vote of any citizen who is a member of a protected class of racial and language minorities." (15)

More recently, the Ninth Circuit stated, "Section 2 plainly provides that a voting practice or procedure violates the [Voting Rights Act] when a plaintiff is able to show, based on the totality of the circumstances, that the challenged voting practice results in discrimination on account of race." (16)

The evidence shows that punch-card machines have exactly this effect, denying proportionately more voters of color the right to have their votes counted.

Lawsuits challenging punch-card machines have been brought and settled in Florida, Georgia, and Missouri. In Common Cause Southern Christian Leadership Conference v. Jones, a federal district court in California denied the government's motion to dismiss and approved a settlement providing for the replacement of punch-card machines before the March 2004 presidential primary. (17)

The California recall

The unexpected and unprecedented 2003 recall election in California led to a new challenge to the use of punch-card machines. Although the lawsuit failed to postpone the recall, the Ninth Circuit's ruling in the case shows that it should not be treated as a precedent lessening the likelihood of successful challenges in other states.

On August 20, 2003, the U.S. District Court for the Central District of California ruled against the plaintiffs, who argued that punch-card ballots would disenfranchise voters in the recall. The court issued an order and opinion denying the request for a preliminary injunction. However, a three-judge panel of the Ninth Circuit reversed the district court, holding that to treat similar voters in California differently based solely on the accident of geography would violate equal protection. The panel relied heavily on the Supreme Court's decision in Bush v. Gore to support its conclusion. (18)

The Ninth Circuit granted en banc review and, in a per curium opinion without dissent, reversed the panel. The en banc decision disagreed with the panel's conclusion that equal protection was violated primarily on the grounds that the district court had not abused its discretion in denying a preliminary injunction.

The Ninth Circuit's entire discussion of the equal protection claim was this statement:

   We have not previously had occasion to consider
   the precise equal protection claim
   raised here. That a panel of this court unanimously
   concluded the claim had merit provides
   evidence that the argument is one
   over which reasonable jurists may differ. In
   Bush v. Gore, the leading case on disputed
   elections, the Court specifically noted: "The
   question before the Court is not whether
   local entities, in the exercise of their expertise,
   may develop different systems for implementing
   elections." We conclude the district
   court did not abuse its discretion in
   holding that the plaintiffs have not established
   a clear probability of success on the
   merits of their equal protection claim. (19)

In other words, the Ninth Circuit did not decide the merits of the equal protection challenge to punch-card voting machines. It reversed the panel's decision solely on the grounds that the district court had not abused its discretion.

But there is a significant analytical problem with this conclusion, which is inconsistent with the court's statement earlier in its opinion:

   The district court's interpretation of the
   underlying legal principles ... is subject to
   de novo review, and a district court abuses
   its discretion when it makes an error of law.
   Thus we have held that an order "will be
   reversed only if the district court relied on
   an erroneous legal premise or abused its
   discretion." (20)

The Ninth Circuit is clear that the issues of law underlying a district court's decision denying a preliminary injunction are reviewed de novo. (21) The court, therefore, was wrong to overrule the panel's equal protection analysis based solely on the standard of review.

The Ninth Circuit then went on to consider the plaintiff's Voting Rights Act claim, which it considered "stronger" than the equal protection claim. (22) But the court rejected it nonetheless, noting that the district court had not abused its discretion in refusing to halt the recall election because of the great hardships that would result from postponement. The appeals court explained:

   Time and money have been spent to prepare
   voter information pamphlets and
   sample ballots, mail absentee ballots, and
   hire and train poll workers. Public officials
   have been forced to divert their attention
   from their official duties in order to campaign.
   Candidates have crafted their message
   to the voters in light of the originally
   announced schedule and calibrated their
   message to the political and social environment
   of the time. They have raised funds
   under current campaign contribution laws
   and expended them in reliance on the election's
   taking place on October 7....
   Hundreds of thousands of absentee voters
   have already cast their votes in similar
   reliance upon the election going forward
   on the timetable announced by the state.
   These investments of time, money, and the
   exercise of citizenship rights cannot be
   returned. (23)

Most important, the Ninth Circuit did not reject the Voting Rights Act argument; it just refused an injunction based on the circumstances of the California recall election.

There is no doubt that a federal court has the power to order that constitutionally adequate voting machines be used and to delay an election, if necessary, until they are available. The Supreme Court has expressly stated, "If time presses too seriously, the district court has the power appropriately to extend the time limitations [for elections] imposed by state law." (24)

In fact, the Supreme Court has repeatedly approved delaying an election when it is necessary to ensure compliance with the Voting Rights Act. In each case, the Court found that the preclearance of changes in election practices required by [section] 5 of the Voting Rights Act had not been met.

Section 5 applies to areas where there is a history of race discrimination in voting. In jurisdictions covered by [section] 5, the U.S. Department of Justice must approve--"preclear"--any change in election practices or districts. The Court stated, "If a voting change subject to [section] 5 has not been precleared, [section] 5 plaintiffs are entitled to an injunction prohibiting implementation of the change." (25)

Similarly, in Clark v. Roemer, the Supreme Court stated, "the district court should have enjoined the elections." (26)

Other courts have likewise enjoined elections and election procedures. In Haith v. Martin, for example, the election of superior court judges was enjoined when election procedures were changed without preclearance. (27) Similarly, in Garza v. County of Los Angeles, a panel enjoined a county election until a court decided whether a district's boundaries were fairly drawn. (28)

In Bush v. Gore, the Supreme Court said that it was deciding only that case for that day. But the legal system does not work that way. Supreme Court decisions are precedents, and lawyers throughout a the country have begun using the ruling as the basis for lawsuits challenging the use of different voting machines within a state. Even without Bush v. Gore, these are strong claims, and it is likely that there will be many more such suits as the 2004 elections approach.

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Notes

(1.) 531 U.S. 98 (2000).

(2.) Id. at 104-05.

(3.) Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 882 (9th Cir.) rev'g 278 F. Supp. 2d 1131 (C.D. Cal. 2003).

(4.) Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) (en banc, per curiam).

(5.) Initial declaration of Henry E. Brady at 5, Southwest Voter Registration Educ. Project v. Shelly, 344 F.3d 914 (9th Cir. 2003), available at http://ucdata.berkeley.edu/new_web/recall/ initaclu.pdf.

(6.) Id.

(7.) Id. at 13.

(8.) Henry E. Brady, "Revised Memorandum on Residual Vote Rates, Oct. 9, 2003, available at http: //ucdata.Berkeley.edu; click on Punch-Card performance and the October 7, 2003, Recall Election," then on 4, "Post-Election Memorandum on Punch Card Performance."

(9.) Democratic Party v. Orr (Ill., Cook County Cir. Ct. 2001), at www.constitutionproject.org/ eri/election_lawsuits.pdf.

(10.) Initial declaration of Henry E. Brady, supra, note 5, at 14.

(11.) 372 U.S. 368, 380 (1963)(emphasis added).

(12.) 383 U.S. 663, 665 (1966).

(13.) Black v. McGuffage, 209 F. Supp. 2d 889, 899 (N.D. Ill. 2002).

(14.) 42 U.S.C. [section] 1973 (2000).

(15.) Thornburg v. Gingles, 478 U.S. 30, 43 (1986).

(16.) Farrakhan v. Washington, 338 F.3d 1009, 1015 (9th Cir. 2003) (emphasis added).

(17.) 213 F. Supp. 2d 1110 (C.D. Cal. 2002).

(18.) Shelley, 344 F.3d 882.

(19.) Id. at 918 (citing Bush, 531 U.S. 98, 109).

(20.) Id. at 918.

(21.) Idaho Sporting Cong., Inc. v. Alexander, 222 F.3d 562, 565 (9th Cir. 2000); Brookfield Communications, Inc. v. W. Coast Entm't. Corp., 174 F.3d 1036, 1046 (9th Cir. 1999); Foti v. City of Menlo Park, 146 F.3d 629, 634-35 (9th Cir. 1998).

(22.) Shelley, 344 F.3d 914, 918.

(23.) Id. at 919.

(24.) Sixty-Seventh Minn. State Senate v. Beens, 406 U.S. 187, 201 n.11 (1972).

(25.) Lopez v. Monterey County, Cal., 519 U.S. 9, 20, 22 (1996) (reversing failure to enjoin a California county election even though "simply enjoining the elections would leave the county without a judicial election system").

(26.) 500 U.S. 646, 655 (1991).

(27.) 618 F. Supp. 410, 414 (E.D.N.C. 1985), aff'd without opinion, 477 U.S. 901 (1986).

(28.) 918 F.2d 763, 777 (9th Cir. 1990), cert. denied, 498 U.S. 1028 (1991).

ERWIN CHEMERINSKY is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California in Los Angeles. He served as cocounsel in Southwest Voter Registration Education Project v. Shelley.