Suits Seek Uniformity in States’ Vote-Counting

In the months since the U.S. Supreme Court ruling that awarded the presidential election to George W. Bush, lawsuits have started sprouting up around the nation demanding greater uniformity in statewide vote-counting.

Legal experts say the suits--a byproduct of the court’s decision that a lack of uniformity in vote recount procedures violated equal protection rights--will determine whether the controversial ruling has ramifications for future elections.

“This squarely raises a question scholars have been discussing since Bush vs. Gore was handed down,” said J. Clark Kelso, a professor at McGeorge School of Law in Sacramento.

The suits are also providing a new forum for national debate over how to fix the nation’s ailing voting machinery--a problem brought into sharp focus by November’s election.

The latest such suit was filed in Los Angeles federal court Tuesday by the American Civil Liberties Union, alleging that the wide variety of voting machines used in California results in sharply disparate levels of accuracy. Calling the state’s voting system flawed and discriminatory, the ACLU charges that “a disproportionate number of votes in some counties”--including Los Angeles--are not counted.

Additionally, the suit, filed on behalf of five nonprofit groups and eight voters, asserts that “a disproportionate number of African American, Latino and Asian American voters do not have their votes counted at all.”

In November, 53.4% of California voters, including those in Los Angeles County, used machines for “pre-scored” punch cards, similar to those that created some of the problems with hanging and pregnant chads in Florida. Ballots cast using those machines accounted for 74.8% of all ballots that did not register a vote for president in California, the suit states.

The error rate for these machines was more than double that of any other system used in the state and three times as high as in Riverside County, which used high-tech touch screen voting machines, according to the suit.

“Under our Constitution, every vote should be counted, regardless of where a person lives or the color of his or her skin,” Dan Tokaji, ACLU staff attorney, said in a news conference at the organization’s Los Angeles office. “Unfortunately, that is not true in California today, due to outdated equipment which is the voting equivalent of a horse and buggy.”

Legal experts said the recent wave of lawsuits--others have been filed by the ACLU and additional attorneys in Florida, Georgia and Illinois--will mark the first important tests of whether December’s Supreme Court decision will be applied broadly or limited to the specifics of the 2000 presidential election.

“This is a big deal,” said Loyola law professor Richard L. Hasen, who like Kelso closely followed last year’s post-election legal battles.

Mark Rosenbaum, legal director of the ACLU of Southern California, said the logic of last year’s Supreme Court decision, which held that Florida’s manual vote recounts violated equal protection because of differing county standards, is beneficial to the plaintiffs in the Los Angeles case.

“I think that Bush vs. Gore dictates that you can’t have voting machines of different levels of reliability,” said Rosenbaum, who is representing Common Cause, the Southwest Voter Registration Project, the Southern Christian Leadership Conference and the Chicano Federation of San Diego County in the suit. Another plaintiff, the AFL-CIO, the nation’s largest labor organization, is separately represented by its own Washington attorneys. Munger, Tolles & Olson, a large Los Angeles law firm, is assisting the ACLU.

The plaintiffs are asking a federal judge to order California Secretary of State Bill Jones to decertify the use of two types of punch card voting machines now approved in California, including the Votomatic system used in Los Angeles, San Diego and Alameda counties and the Pollstar system used in San Bernardino and Sacramento counties.

The suit also asks that Jones be required to develop vote-counting standards that protect the rights of all Californians.

The cases filed so far in the three other states contain similar allegations. For example, the suit filed in federal court in Chicago alleges that state election officials have violated the rights of Illinois voters by approving for use in some locales “punch card voting systems, which have a substantially higher rate of error in recording, counting and tabulating votes than the optical scan voting systems, which defendants authorize for use in other election jurisdictions.”

In the aftermath of the 36-day legal battle to determine who won Florida--and consequently the White House--there have been widespread calls for voting reform in California and around the country.

Indeed, Secretary of State Jones and Assembly Speaker Bob Hertzberg (D-Sherman Oaks) have urged Gov. Gray Davis to put $300 million into the next state budget to help counties modernize their voting systems.

On Tuesday, Republican Jones, in a somewhat unusual move, embraced the ACLU’s lawsuit, saying it echoed calls he made for reforms in November.

“I encourage all of the parties to this lawsuit to have their members write the governor and Legislature in support” of the Hertzberg legislation, he said.

The measure--which calls on counties to put up $1 for every $3 provided by the state, meaning a potential total expenditure of $400 million--is scheduled to have its first hearing in the Assembly Elections and Reapportionment Committee on Monday.

Davis has allocated a far smaller sum--$40 million--in his proposed state budget for a pilot project to help three counties develop new voting technology. Davis spokeswoman Hilary McLean said the governor felt that was a “more prudent” expenditure.

Jones spokesman Alfie Charles said Tuesday that even that amount might be in doubt because of the billions being drained from state coffers by the energy crisis.

Conny McCormack, Los Angeles County’s registrar-recorder, said she takes no issue with the ACLU’s allegations about the disparity of outcomes depending on the type of voting machine that is used.

“Their facts are correct. The remedy is the rub,” McCormack said. It would cost $100 million to implement a touch screen voting system in Los Angeles County alone, she said.

During November’s election, McCormack said, Los Angeles County conducted a test project using touch screen voting systems in nine locales. She said 21,963 people voted on touch screens during the experiment, with an error rate of only 0.5%, considerably less than the 2.36% error rate on the Votomatic punch cards used by the rest of the county voters.

“There is no question that it is more difficult for voters” to use the county’s 33-year-old punch card system, McCormack said. “I have been pointing out to the Board of Supervisors that it is time to get more modern, and the board supports this.” But the thorny question is how to pay for it, she added.

Henry Brady, a professor of political science at UC Berkeley who is a consultant to the ACLU in its suit, said that although it might ultimately cost $300 million to modernize all of the state’s election machinery, the fixes demanded in the lawsuit could be accomplished for about $50 million.

Legal scholars were divided on the merits of the case. Loyola professor Hasen said the current disparity in machine reliability in California clearly represents a violation of equal protection under Bush vs. Gore.

In the aftermath of last year’s Supreme Court decision, “there is a good chance these cases will succeed,” he said.

In its 5-4 ruling, the high court declared that a state violates equal protection when it fails to have uniform standards for the recounting of votes during a statewide election.

“If counting only the undervotes [unclearly marked ballots] values one person’s vote over another’s, as the Supreme Court has said, why doesn’t a voting system with double or triple or quadruple the error rate of another system value one person’s vote over that of another?” Hasen said.

On the other hand, he acknowledged that the opinion of the Supreme Court majority contains language explicitly attempting to limit the reach of the ruling: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

Hasen said a judge could seize on that language to throw out a case such as the one filed Tuesday. Kelso said he thinks the Supreme Court decision does not require that the same equipment be used in all counties in the same state, “even though there are very different error rates.”

He said the key legal question in the case filed Tuesday is whether Secretary of State Jones “has to have merely a rational reason for approving a machine which has a higher error rate or a compelling reason.” Kelso said that if it is the less rigid standard, the suit might fail, because a judge could conclude that Jones was rational in approving a system that cost less and with which voters are already familiar.

However, Kelso said that if the standard is the stricter one, it would be quite difficult for Jones to convince a judge that there is a compelling reason to approve a less reliable machine, particularly since the Supreme Court decision said that voting is a fundamental right.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Uncounted Votes

Voting machines used in selected California counties and the percentage of presidential votes that they failed to count in the 2000 election.

*

0.69

Global Accu-Vote optical scan system used in Santa Barbara and Marin counties

*

0.85

Datavote punch card system used in Orange and Ventura counties

*

1.10

ES&S; Optech Eagle optical scan system used in San Francisco County

*

1.83

Pollstar punch card system used in San Bernardino and Sacramento counties

*

2.36

Votomatic punch card system used in Los Angeles and San Diego counties

*

Source: ACLU, based on data from California Statewide Database