*1 not a basis that he was on the application purposes. for EAJA
“prevailing party” deter- remand, court must the district
On record,
mine, on the administrative based (1) position the Commissioner’s
whether (2) justified,” special “substantially
was unjust. made award
circumstances STEWART, al., et Plaintiffs-
Effie
Appellants, BLACKWELL, al., et Kenneth
J.
Defendants-Appellees.
No. 05-3044. Appeals,
United States Circuit.
Sixth
Argued: Dec. 2005. April and Filed:
Decided *3 Tokaji,
ARGUED: P. Ohio Daniel State Law, University College Moritz of Colum- bus, Ohio, Appellants. for Richard N. General, Coglianese, Attorney Office Columbus, Ohio, Stankunas, Jeffrey A. Teetor, & Isaac, Brant, Ledman Colum- bus, Ohio, BRIEF: Appellees. for ON P. Tokaji, University Daniel Ohio State Columbus, Law, Ohio, College Moritz Saphire, University Dayton Richard Ohio, Law, Dayton, Laughlin School McDonald, Bell-Platts, E.B. Meredith American Civil Liberties Union Founda- Atlanta, tion, Moke, Georgia, Paul F. Wil- Ohio, mington College, Wilmington, for Coglianese, Holly N. Appellants. Richard Hunt, General, Attorney J. Office of the Columbus, Ohio, Stankunas, Jeffrey A. Landes, Isaac, Brant, Mark D. Ledman & Teetor, Columbus, Ohio, T. Victor Whis- man, Prosecuting Attorney Office of the County Montgomery, Dayton, for the Ohio, Davis, Hamilton, County voting equipment Anita L. Summit card Mont- (3) Office, Akron, Ohio, Counties; gomery, Prosecutor’s David Summit Stevenson, County using optical voting sys- Todd Hamilton Prose- non-notice scan Office, Cincinnati, Ohio, cuting Sandusky County. Appel- tems lees. 14, 2004, On December the district court rejected plaintiffs’ granted claims and MARTIN, COLE, Before: summary judgment in favor of the defen- GILMAN, Judges. Circuit suggest- dants. Some commentators have MARTIN, J., opinion delivered the types voting rights ed that these chal- court, COLE, J., joined. which lenges taking us into a brave new suggest world. Others are sim- GILMAN, 880-97), (pp. J. delivered *4 ply variations of old challenges. Regard- separate dissenting opinion. characterization, proper
less of the we find OPINION by Supreme prece- ourselves bound dent, therefore, regard and with to the MARTIN, JR., BOYCE F. Circuit plaintiffs’ claim Equal under the Protec- Judge. Clause, tion we REVERSE the district plaintiffs are African-American and judgment. regard court’s With to the Hamilton, residing Caucasian voters plaintiffs’ Voting Rights claim under the Montgomery, Sandusky, and Summit Act, we judg- VACATE the district court’s They Counties Ohio. filed their com- proceedings ment and REMAND for con- plaint on alleging October that: opinion. sistent with this (1) unreliable, the use deficient ballot, equipment, including punch card I. Ohio some counties but not other coun-
ties violates Protection Clause A. Background Voting on Information (2) Amendment; of the Fourteenth the use Technology prone voting of error equipment deprives process voters of their due right to have Ohio law empowers Secretary (3) accurately; their votes counted and certify voting the State to equipment. Ohio of punch voting systems § use card in Ham- Secretary Rev.Code 3506.15.1 The has ilton, Montgomery, general and Summit Counties two types equipment: certified (1) disparate impact has a on African-Ameri- “Notice” equipment Digital such as Re- (DRE) can voters in violation of cording Section Electronic precinct- and Voting Rights Act of 1965. The optical equipment count scan that prevent (when sought declaratory injunctive relief overvotes a voter votes for more (1) prohibiting the defendants permissible from: con- than the number of candidates office) tinuing to allow the use of “non-notice” for a given and warn voters when (when punch deficient card optical casting scan vot- undervotes a voter ing equipment in some Ohio counties while does not vote in a particular race or votes using more voting equipment reliable in for permissible fewer candidates than is (2) counties; other using punch given non-notice for a office) together, overvotes — Secretary already Help The Ohio of State requires America Vote Act of 2002 states campaign replace embarked on a both who choose to receive federal funds under the punch optical card and central count scan punch systems Act to discontinue use of card machines, but as of the November 2005 elec- by 2006. tions, Moreover, entirely has not done so. polling place “residu- to scan the ballot at the are referred to as ers and undervotes (2) equipment thereby providing independent notice of votes”; and “Non-notice” al opti- opportunity to correct residual card and central-count punch such as votes, do provide systems, not or central-count which equipment cal scan do op- opportunity provide independent to correct notice or the notice of and the portunity In the elec- to correct general mistakes. residual votes.
tion, voters 72.5% of Ohio approximately DRE Electronic machines come sev- used equipment and 27.5% used non-notice varieties, eral but most resemble au- often equipment. notice tomated teller machines or ATMs used election, most general banks. Voters either touch the name the 2000 preferred candidate on the frequently equipment used Ohio was screen card, system press punch corresponds non-notice button Votomatic preferred card candidate. DRE pre-scored, on a ballot All forms of relies currently or “chad” that corre- used in Ohio make square perforations impossible names of the candidates listed to overvote for the same office spond to the systems in an Names of or initiative. DRE can also accompanying booklet. ballot information if their identifying programmed or other be warn voters candidates systems DRE appear measures do not ballots contain undervotes. ballot *5 (like punch system precinct-count optical systems), actual The card does scan ballot. therefore, provide independent provide independent not notice of an over- notice by A is recorded votes. vote or undervote. vote residual passes light through the machine when election, general sixty-nine In ma- holes. with the detached Problems punch eighty-eight Ohio counties used that re- “hanging chines can cause chad” optical card ballots. Eleven counties used one, two, main to the ballot attached equip- six equipment, scan used electronic corners; are “pierced three chad” that ment, and two used automatic or “lever” stylus dislodged penetrated by the but not systems machines. utilize These ballot; “dimpled from the and chad” counting and reading different methods penetrated not or dis- dented but voters systems votes. Some of allow chad lodged. Because of these inherent their residual votes. to check ballots for through often cannot problems, light pass example, part one of an- county For and a vote the holes and is not recorded. optical utilized county precinct-count other in the ma- punch Problems inherent card and use elec- equipment, scan six others by the build chines are sometimes caused voting equipment that allows a voter tronic up may it difficult or chads which make their ballot on a screen before verify cleanly and impossible punch the card howev- systems, final is cast. Most ballot a vote. record er, by the four including operated the ones defendants, Optical systems county answer scan and count ballots scan resemble have polls in The location after the testing. sheets standardized at a central used total, Thus, eighty-one listing voter a ballot the names closed. given is non-inde- Ohio counties used eighty-eight all candidates and ballot initiatives technol- pendent-notice equipment voting the circle pencil either uses darken — provide a voter with draws a that does preferred ogy next to the candidate or a prob- straight connecting parts line two notice from device finally systems exist the ballot Optical might scan can be either lem before arrow. general vot- the 2000 election. precinct-count systems, which enable cast—in Only three counties collected statistics counted as a using voter reliable electronic on County, overvotes—Hamilton which voting equipment. In spe- some counties 2,916 overvotes, had County, Summit precincts cific encountered more severe 1,470 overvotes, which had Montgom- problems voting. with residual In Akron ery 2,469 County, which had overvotes. City Precinct 3-F the residual vote rate 6,855 This is a total of overvotes those Dayton City’s was 15% and in 14th Ward counties, represents three which approxi- Precinct C the residual vote rate was 17%.2 mately 34% of the total residual votes cast addition, experienc- the counties in Ohio County those counties. Franklin used ing highest percentage of residual notice and there zero ov- were votes in the 2000 presidential election were ervotes. those in which punch voters used card technology while the experiencing counties B. The Statistical Evidence percentage the lowest of residual votes plaintiffs’ expert, Dr. Kropf, Martha technology. used other twenty-nine regarding testified estimates of intentional counties in highest Ohio with the residual undervoting unintentional based on percentages vote were all counties that data collected National Elections Stud- machines; punch used card the seven ies Survey and the News Voters exit counties with the per- lowest residual vote polls surveys in presidential elections centages were all counties that did not use between 1980 and 1996. Kropf testified punch card machines primary as their vot- that intentional undervoting presidential ing system. relatively elections is a rare event that is Saltman, Roy formerly of the National estimated to involve between .23% and Bureau of Standards and the author of two .75% of all Kropf residual votes. Dr. con- federal computers studies the use of cluded that when undervoting levels of ex- *6 vote tallying testified that his studies ceed this vary by threshold and equipment punch “demonstrate that probable cards are inher- they is that resulted from unin- ently fragile, undervoting tentional that become less is stable associated problems with of when ballots are punch manipulated card handled or ballot. reader, She also found or through no difference Afri- sent a resulting between in over- votes, undervotes, can-American and non African-American and inconsistent vote voters in levels of intentional undervotes. tabulations.” explained Saltman that lost Kropf performance measured the voting of votes are not solely attributable to voters’ equipment by examining presidential and failure to follow According instructions. Saltman, Senate races at top of the ballot “[w]hen the ballot is then han- because these are statewide elections manipulated dled or through or sent a where all candidates, reader, voters face the same likely it is more that additional and media coverage, levels of candidate dislodged chads will be fall out. And competition, and voter mobilization if happens, are rel- the votes indicated on the atively uniform. Kropfreported an overall ballot are changed presence because the of statewide residual vote rate of Walch, 2.29% for holes indicates votes.” Dana Di- punch systems card and 2.14% for central- rector of Election Reform for the Ohio is, count optical scans. That Secretary Office, voters in of State’s confirmed punch card counties are approximately plaintiffs’ evidence that there is “a higher four likely times as not to have their votes punch residual vote rate in card counties- presidential 2. The 2000 by margin election in Ohio was decided a of 3.51%. repeated ballots types punch through in ... with other of card times
than counties machinery voting technology.” counting Walch further testi- will result in dif- punch card problems fied that ferent results.” physical the result of some ballots “were MIT Voting Technology Caltech error.” The failure of the ballot or voter Project report joint venture between —a Tim includes letters from record also study, part, the two institutions to Burke, the Chairman of the Board of Elec- reliability existing voting equipment— of County, tions Hamilton which state that: record, throughout which is referenced I While continue believe notes, is also informative. As report system reasonably card functions punch equipment “[i]f has no effect on price, for the it does have faults well ability of express pref- voters to their that the electronic machines do not have. erences, then the residual vote should be very I a problem believe the chad is types.” unrelated to machine See Cal- problem of here in Hamil- part small our Voting Technology Project, tech-MIT Re- In County. though. ton It does exist sidual Votes to Technology: Attributable fact, of part punch it is an inherent Reliability An Assessment Exist- hand, system. the other chads card On (Version ing Voting Equipment 2: March totally eliminated with electronic 30, 2001), available http://www.vote.cal- systems. (last 2006). April tech.edu accessed Another letter authored Burke U.S. report concluded that the error rate from stated that: Senator Mike DeWine punch percent higher cards is 50 than Having closely punch at the card looked technologies pattern other and that system voting we use here in Hamil- turnout, up “holding holds when constant County, ton I am convinced that income, counties, composition age racial having dispa- outdated a counties, rates, literacy distribution impact depriving significant rate year technology, shift the number of having voters their elector- number ballot, of offices and candidates on the al given.... technology, choices Newer county operate other factors that sys- particularly the touch screen particular year.” Report at 22. con- tems, provide both a more accurate clusion, the stated that inci- report “[t]he count and a voter prevent [overvot- from punch of such votes with dence residual *7 ing]. forty seventy ... per- card methods is higher cent than the incidence of residual Finally, a third letter from Burke stated technologies,” Report votes with the other that: and cautioned that election ad- “[i]f punch I am not as confident that our , catastrophic ministrators wish to avoid voting system precise card tells us with failures, they may warning ... heed th[is] accuracy partic- the number of votes cards,” using punch Report at 11. Stop ular individual received or should have if received the intent of the voter had expert Defendants’ Dr. John Lott exam- properly been accounted for.... In the performance voting technology ined the punch system you card can and cycles, across three election objectively that provable hundreds and Congression- in presidential, people hundreds of lose their vote each al, Senate, and House elections. Ohio Ohio year. findings presidential His for the and U.S. evidence, response Kropf to this the district Senate elections mirror s acknowledged “running reported court election. Lott an overall state- that punch study wide residual vote rate of 2.4% for In a ‘over’ and ‘under’ Ohio, systems. dearly card it was demonstrated punch-card voting that was unreliable report Dr. Lott’s findings stresses from to the by [that] extent votes cast thou- the down-ballot contests —contests listed sands being Ohioans were not count- presidential below the candidates farther ed in the election tabulation.” final down the ballot—that were not uniform added). (Emphasis Additionally, the re- across the state included non-competi- port stated that: tive and uncontested elections. The ex- officials, perts on As election if appear agree both sides we know voters are likely explanations legitimate- the most disenfranchised and that the fall-off discounted, ly being in down-ballot cast ballots are voting are that voters we delib- erately only obligation have not a moral im- choose not to vote or that elections solution, mediately competitive. were not embrace a but a report legal Lott’s does specific obligation remedy not include to find a findings on and enact overvotes. Further, experts prevent the defendants’ measures to that from happen- made no ing. effort to If distinguish intentional from unin- even one voter is denied the vote, undervoting obligated, law, tentional we the down-ballot forge elections. Lott also determine the cause and admitted a re- solu- view of tion. The the literature evidence is overwhelming revealed no major other agreed scholars have thousands Ohio with his voters have been findings regarding analyz- antiquated voting relevance of disenfranchised ing equipment non-uniform and that many down-ballot races. thousands have lost reliability confidence Help State’s America Act Vote re- accuracy of voting currently devices port provides also problem evidence of the in use in most of Ohio’s 88 counties. of deficient electoral technology. At the added). (Emphasis outset, report “[pjublic notes that con- accuracy fidence punch card vot- Finally, response legislature’s ing systems seriously has been under- response slow to the electoral problems, Thus, mined.” “Boards of election should Secretary of State wrote a letter stat- upgrade new, their voting systems to more ing that possibility “the of a close election trustworthy technology.” Additionally, punch cards as the primary state’s “[tjhese goals demand immediate atten- voting device invites Florida-like calami- tion, or our state runs the risk of repeating ty.” problems of our nation’s most recent C. The Voting Rights Act
presidential election—and suffering irrepa- Plaintiffs’ Claim damage rable important the most concepts basic of democracy.” Regarding claim, On their Voting Rights Act *8 the deficient technology currently in use plaintiffs alleged punch that the sys- card State, throughout the report the stated Hamilton, tem used in Montgomery, and that: produces Summit higher Counties a resid- Secretary
“While the of State notes that ual vote rate for African-American voters punch-card voting is not explicitly pro- than for white voters. plaintiffs pre- The hibited under Help America regression sented analysis Vote that the corre- Act, requirements other of the Act make lation between overvoting percent- and the impractical it punch to use voting age card in given African-American voters as a primary voting in precinct device the state. in County Hamilton was .517 and among and non County plain- in it was .682.3 The African-American African- Summit these experts tiffs’ characterized correla- American voters. Montgomery In “strong.”
tions as
Coun-
Responses
D. The
of overvotes mixed
Defendants’
ty,
only
where
data
pre-
was available
with undervotes
plain-
The
that the
defendants contend
smaller,
level,
cinct
there was
but never-
tiffs did not
factual
provide
evidence
correlation.
“strong”
theless
.440
prove
violation of the Constitution or
Rights
Voting
heavy emphasis
Act. With
Dr.
plaintiffs’ expert,
Eng-
The
Richard
plaintiffs’
on the
that
stipulation
were
strom,
on
analyzed the data based methods
not denied
physical
polls,
access to
analysis approved by
of statistical
the Su-
allege
plain-
defendants seem to
Court and other federal courts in
preme
tiffs were not denied the
to vote.
voting rights
e.g., Thornburg
cases. See
v.
State Defendant’s Br. at 8. The defen-
Gingles, 478 U.S.
attack
plaintiffs’ expert,
dants
Ohio,
Martha
(1986); Mallory
L.Ed.2d
(6th Cir.1999).
Kropf, who
that
intentional
testified
un-
F.3d 377
three meth-
rare,
dervoting is
on the fact
based
that
analysis,
are homogeneous precinct
ods
exclusively
polls
relied
on exit
she
commis-
ecological
ecological
and
infer-
regression,
Survey
Dr.
sioned
the National Election
Engstrom
ence.
used all
meth-
three
They
them
Voters News Service.
fur-
triangulated among
verify
ods and
election,
point
his
ther
out that
in the 1988
findings
consistently
moved
in the
direction;
Survey
the National
expert
same
the defendants’
did
Election
determined
that between
of those who
Eng-
not use
of these methods. Dr.
3-5%
claimed
(1)
to have
of actually
strom concluded that:
African-Ameri-
voted had no record
Thus,
in
County
voting
in
according
cans
Hamilton
overvoted at a
election.
defendants,
plaintiffs
than non
the data the
higher
rate seven times
African-
re-
(2)
Americans;
consistently over-reports
Afri-
lied on
County,
Summit
voter
thereby inflating
at a
can-Americans overvoted
rate nine
residual
turnout —
African-Americans;
higher
vote
also
times
than non
statistics. The defendants
criti-
(3)
(where
County
cize the
Montgomery
examining
voting
state
in-
only combined over and
statis-
results of the entire
undervote
Hamilton,
basis),
focusing
Sandusky,
stead
precinct
tics are available on a
Afri-
Summit,
Montgomery
Counties. The
can-Americans had a residual
rate
poke
2.5 times that of non African-Americans.
defendants further claim
holes
out
punch
plaintiffs’ theory
pointing
contrast to the three
card coun-
ties,
study
Franklin
County
plaintiffs’
had no
own
shows
Afri-
overvotes
card
using punch
DRE machines
can-Americans
technolo-
pre-
because
used
gy
County
had
lower
overvoting.
vent
Hamilton
resid-
rate
ual vote
than non African-Americans
information,
Eng-
Based on this
Dr.
using
punch
card
Sum-
punch
equipment
strom testified that
card
County.
mit
conditions,
interacts with
re-
socioeconomic
to their
sulting
statistically significant
point
also
ex-
dispari-
defendants
Lott,
Dr.
pert,
of residual
John
who examined the
ties between the levels
(a
Regression
perfect relationship).
1.0
HUBERT M.
coefficients measure
*9
BLALOCK,
strength
JR.,
two
of association between
variables.
STATISTICS396-97
SOCIAL
(a
They range
perfectly
ed.1979).
inverse
(2d
from -1.0
rela-
(no
tionship), through
relationship),
to +
cards,
presidential
punch
optical
and 2000
elections 2.4% for
2.0% for
Senate,
scan,
such
technology,
and down-ballot races
as U.S.
1.4% for level
and 1.0%
races,
Congress,
legislature
technology.
fig-
state
and for DRE
Based on these
ures,
punch
punch
local races. Dr. Lott found that
plaintiffs’ alleged
outperformed
cards
electronic machines in
optical
cards and central-count
scan tech-
races,
(but
congressional
lever,
that punch
nology
precinct-count opti-
cards reli-
scan,
ability improved for down-ballot races rel-
DRE technology)
cal
violate the
technologies,
punch
and that
ative
other
and Due Process
clauses.
produced
cards
fewer non-voted ballots for
Citing this Court’s decision in Mixon v.
1992, 1996,
than
and
races
either
Ohio,
(6th Cir.1999),
State
bring vote denial or vote dilution claims II. Act,
under the
but found that the plaintiffs
Standing
A.
only a
brought
vote denial claim and that
turning
Before
to the merits of
plaintiffs
the
admitted that
were not
case,
the
we address the
argu
defendants’
physical
denied
polls.
access
Be-
ment
cause,
court,
plaintiffs
standing.
lack
according to the district
“[a]
The district court stated that it “is of
vote denial arises when a state or munici-
view that the
pality employs
‘practice
procedure’
defendants have the better
argument
that results in the ‘actual’ denial of
on the
standing,
issue of
race,”
right to vote on account of
see
declines the invitation to dismiss the case
1973(a),
§
plaintiffs
U.S.C.
did not
standing.”
on
The district court erred in
bring
cognizable Voting Rights
Act not determining
plaintiffs
whether the
had
claim.6 The court
that:
stated
“When cou-
standing. Steel Co. v. Citizens
a Better
for
pled
previously
with the
referenced de Environment,
83, 94-95, 118
523 U.S.
S.Ct.
ballots,
minimis
punch
affects of the
card
(1998) (courts
1003,
Finally, the court concluded that “the
did not vote in
previous
elec
operation of
voting systems by
different
tion,
(2)
fact,
injury
she suffered no
different counties within the same state
no plaintiff
standing
bring
suit
does not amount to a violation of
against
County,
Hamilton
Relying heavily
Protection Clause.”
because none of
dissenting opinion
Justice Souter’s
the four voters have ever lived or voted in
Bush
Gore,
98, 134, 121
525, 148
County.
Hamilton
generalized
plain-
5. The district court’s
state-wide
6. The district court did not address the
average
residual vote
did not
take into ac-
challenged
tiffs’ statistical evidence in the
plaintiffs'
count
the extent
statistics.
According
plaintiffs’
counties.
com-
example,
Sandusky County,
For
the rate in
plaint,
precincts
County
in the 57
in Summit
optical
equip-
which used central-count
scan
comprise
where African-American voters
examples
ment was
of the resid-
2.64%. Some
majority,
average
residual vote rate was
using punch
ual vote rate for counties
cards
precincts
In the 567
where
voters
white
6.7%.
County
were
for Summit
3.19%
for
2.78%
comprise
majority
County,
in Summit
counties,
Montgomery County. Within these
average residual vote rate was 2.9%.
specific precincts
higher
had
residual
rates:
City
for Akron
Precinct 3-F and
15%
17%
Dayton City 14th Ward Precinct C.
*11
however,
reject
arguments Lujan,
B'ryant.
does not overrule
We
the defendants’
fact,
Lujan,
In
after
courts have continued
that
plaintiffs
and conclude
have stand-
recognize
that
the increased risk of
ing
bring
against
suit
the State of Ohio
injury
harm constitutes an
sufficient to
It
and each of the four counties.
has been
support standing.
example, although
For
stipulated
plaintiffs,
that at least one of the
relief,
Supreme
him
ultimately denying
voters,
registered
all of whom are
resides
Court considered the merits of the claims
Furthermore,
defendant-county.
in each
brought by
plaintiff
who had been ex-
plaintiffs’ standing
depend
does not
on
asbestos,
yet
had not
mani-
posed to
any injury
previous
suffered in
elec-
any symptoms
fested
of asbestos-related
tion,
probability
but rather on the
that
R.
disease. Metro-North Commuter
Co.
upcoming
their votes will be miscounted in
424,
2113,
Buckley,
v.
521 U.S.
117 S.Ct.
elections.
(1997).
L.Ed.2d 560
This Court
Yellen,
352,
Bryant
In
v.
in
that
recognized
also
the medical context
2232,
(1980),
S.Ct.
tive or are real and ground The mootness doctrine is nent. controversy” ed Article Ill’s “case or here, Thus, juris requirement. Id. at So too are as plaintiffs 574. mootness is a will requirement, judicial unable to articulate which voter be dictional courts lack equip- power harmed in future deficient to entertain and decide moot cases. inevitable, however, Davis, County ment.7 It is that er- Los v. U.S. Angeles See 440 625, 631, 1379, 642 rors have made and will be made 99 S.Ct. 59 been L.Ed.2d (1979) (“[A] found, As the issues the future. district court case is moot when the par is its no punch presented longer flaw in card ballot ‘live’ or the “[a] fragile running legally cognizable and the fact ties lack a in the nature interest outcome.”) McCormack, punch repeated (quoting card ballots times Powell v. 486, 496, 1944, through counting machinery will result (1969)). different results.” The of the L.Ed.2d 491 The standard claims speculative determining are not or re- whether a case has been here mote, con- voluntary but real and imminent. mooted the defendant’s Earth, right.” plaintiffs in It is irrelevant San- sue in their own Friends County organi- dusky Party (TOC), Democratic were Inc. v. Laidlaw Environmental Services standing “An zations. association has 693, Inc., 167, 181, 528 U.S. 120 S.Ct. bring behalf of when its suit on its members (2000). L.Ed.2d 610 standing would otherwise have members suffrage is a (“Undoubtedly, right might ‘A case become stringent: “is
duct
and demo-
matter in a free
fundamental
made it abso-
subsequent
if
events
moot
century
society.”). For more than
cratic
allegedly wrongful
lutely clear
acknowledged
reasonably
expected
be
could not
behavior
right
to vote.
nature
fundamental
‘heavy
per-
burden of
to recur.’
Hopkins,
Yick
See
Wo
challenged
suading]’
the court
(1886) (acknowl-
30 L.Ed.
expected to
reasonably be
conduct cannot
voting”
franchise of
edging
political
“the
party asserting
up again lies with
start
right”).
“Espe-
political
“a fundamental
Laidlaw,
U.S. at
mootness.”
the fran-
cially
exercise
since
*13
v. Con-
(quoting
693
United States
S.Ct.
unimpaired
manner is
chise
a free and
Ass’n, 393
Phosphate Export
centrated
politi-
of other basic civil and
preservative
203,
361,
199,
Nearly
year
Reynolds, Gray
before
(‘While may
possible
it
not be
to draw
Sanders,
368, 381,
801,
v.
372 U.S.
83 S.Ct.
congressional, districts with mathematical
(1963),
those
prohibit
also
a law
citizens,
rights,
tection clause would
we must live. Other
good
citi-
basic,
expressly give
if
that would
certain
illusory
even the most
17,
a full vote
zens a half-vote and others
undermined.” Id. at
right to vote is
Constitutionally guaranteed
...
[T]he
S.Ct.
right
to vote and the
to have one’s
right
favorably cited
Reynolds
Court also
clearly imply
policy
counted
vote
Peters,
in South v.
Douglas’s
Justice
dissent
systems,
matter
that state election
no
94 L.Ed.
3
designed
form,
their
should be
to
what
(1950),
he stated that:
where
approximately equal weight to each
give
right
to vote than
There is more
Thus,
legislature
a state
vote cast....
right
piece
paper
to mark a
deny
right
voters the
eligible
cannot
right
pull
it in a
or the
drop
box
Congressmen
right
and the
vote
right
lever in a
booth. The
It can no more
have their vote counted.
right
includes the
to have the ballot
vote
their vote in
destroy the effectiveness of
counted.
It also includes the
accomplish this in the
part and no more
at full
have the vote counted
value with-
‘apportionment’
name of
than under
out
or discount.
dilution
other name.
(citations omitted);
Id. at
Helpful favorably
repeat
There is no need to
now the
cited
the Court-was Justice
Green,
v.
in earlier cases to
Colegrove
Black’s dissent
328
labors undertaken
549,
1198,
analyze
right
explain
66
859 (internal Id. selectively quotations ence.” statutes that distribute and cita- state omitted). decision, franchise. In decision after tions the clear that a citizen
this Court has made
recently
Somewhat more
decided is
constitutionally protected
right
has a
Gore,
Bush v.
98,
525,
121
531 U.S.
S.Ct.
equal
on an
participate
elections
basis
(2000),8
388
L.Ed.2d
which reiterated
jurisdiction.
other citizens
with
long
princi-
established
(citations omitted).
(“When
336,
104,
Id. at
ples.
at
Id.
Equal protection applies as well ment, manner of its exercise.” Id. decision in Burdick v. the Court’s Takushi, 428, 2059, 112 S.Ct. Protection, therefore, requires Equal (1992) require L.Ed.2d 245 does not a dif that procedural safeguards” “minimal such Burdick, the Court approach. ferent there “at least some assurance that the is prohibition considered whether Hawaii’s rudimentary equal treat- requirements voting violated the First and ment and fundamental fairness are satis- on write-in 109, Echoing 430, at 525.10 fied.” Id. S.Ct. Amendments. Id. at Fourteenth other, “if holding Dunn’s that there began by noting 2059. The Court S.Ct. ways goals those reasonable achieve any way election law will some constitutionally a lesser burden on with “impose upon some burden individual vot may not choose protected activity, a State ers,” and, result, scru applying as a strict interference,” 405 U.S. way greater claim tiny tangentially related 343, 995, held that 92 S.Ct. the Court unnecessarily tie right to vote would to de- formulation of uniform rules “[t]he seeking regu the hands state officials recurring on these termine intent based 433, 112 orderly late elections. Id. at S.Ct. and, practicable we con- circumstances 2059. The did reassert Court Bush, clude, necessary,” 531 U.S. at fundamental, right to vote is but noted Furthermore, 525. the Court cau- S.Ct. principle that from this it does not follow must remembered that “[i]t tioned be right the “the to associate [with suffrage can be denied ‘the particular political purposes for candidate] weight or dilution of the of a debasement through the ballot Id. In [is] absolute.” just effectively citizen’s vote as whol- Burdick, therefore, found the ly fran- prohibiting the free exercise of the ” affecting only burden to be minimal and (quoting chise.’ Id. at S.Ct. Ha failing comply those voters 1362). Reynolds, 377 non-discriminatory waii’s reasonable and finally, And expressed the Court its reluc- for a procedures qualifying election issue, having tance at to decide the 434-45, place on the ballot. Id. contending parties asserted that “[w]hen Thus, case, 2059. unlike the instant ... process invoke the of the courts technological where the burden is not with unsought responsibility becomes our to re- voters, any the control burden solve the federal and constitutional issues Burdick was the result of the voter’s fail judicial system has been forced to con- timely identify front.” Id. at S.Ct. 525. ure to candidate seek dissenting interpret- Implications Bush v. Gore Several of Justices Administration, majority opinion question ed the to call into & on Election 19 J.L. Pol. *17 practices procedures. additional state 299, (Oct.2003) (noting Supreme 299 system example, For a that allows coun- "[I]n holding a Court's in Bush v. Gore—’"that state types voting systems, ties to use different adopt adequate must uniform standards in already polls voters arrive at the with an conducting a a manual recount of ballots in unequal chance that their votes will be count- presidential applied election—can be in other ed. I do not see how the fact that this results contexts, rendering government some local from counties’ selection of different practices chal- vulnerable to constitutional machines than a court order makes the rather Nevertheless, lenge.”). recognize we 552, outcome more fair.” Id. at 121 justices agreed seven of the that the recount J., Likewise, dissenting). (Breyer, S.Ct. 525 by Supreme Court violat- ordered Florida speculated impact. scholars have on Bush’s Clause; disagree- ed Sauer, "Arbitrary e.g., See Edmund S. remedy. ment was over the Disparate” Democracy: to Obstacles vote,” 438, id. at 2059. In on the ballot. Id. at S.Ct. this place person such case, however, through no failure on their 436-37, (“Consequently, any S.Ct. parts, facing Ohio voters deficient technol of choice and on voters’ freedom burden ogy approach position ballot in a un only by those who fail is borne association equal portion from the of the electorate until identify candidate of choice their using adequate technology. As the State’s But in Storer v. days primary. before the report HAVA stated: “The evidence is Brown, 724, 736, 1274, [415 U.S. overwhelming that thousands of vot Ohio (1974)] gave little L.Ed.2d 714 we ers have been antiquat disenfranchised interest the candidate and weight to ‘the voting equipment.” ed The burden on the making a late supports may have his pales comparison franchise Burdick early decision to seek inde rather than to the burden in this case. status.’”). Finally, noting pendent ballot compliance procedures with Hawaii’s Burdick, The dissent’s reliance on there access,” the “adequate afforded ballot fore, First, Burdick, misplaced. “[i]n a only ban on write-in was State’s plaintiffs’ rights First Amendment rights to make “limited burden on voters’ issue,” ballot access were at Southwest politically and to associate free choices Voter, 899, 344 F.3d at the plaintiffs’ not 438-39, 112 through the vote.” Id. at S.Ct. vote, right to is at issue this case. which dismissing problem 2059. We have little Second, the dissent’s claim that “[f]ederal Burdick, relevance of the context of applying courts the Burdick framework to vote for a which is a voter’s desire challenges have evaluated to various state failing properly after write-in candidate voting regulations under a rational-basis get comply procedures with the state’s 35, Op. standard of review” is cor Dis. ting that candidate on the ballot rect, point. but misses the Burdick was The voter in Burdick had place. ballot; first about a candidate’s access to the equal access to the ballot on terms with was not a case that addressed a voter the rest of the electorate. being equal denied an chance to have her viewed the burden in Burdick as vote counted. Each of the cases cited dissent, little more than a minor burden on those frame employing Burdick’s hour,” work, having who waited until “the eleventh id. are likewise cases little to nothing to decide whom vote to do with the exercise Moreover, “protest adopts the dissent recording for or the interest franchise.11 Merrill, 11. The dissent cites Werme v. 84 F.3d tions are evaluated under the rational-basis (1st Cir.1996) (upholding under ra- Op. standard of review.” Dis. at 884. These Hampshire a New law that tional basis review cases, however, support do the dissent's prevented Party a member of the Libertarian applies to claim that rational basis review serving as a ballot clerk on Election from claim; merely proposition support Day). Whom a state authorizes to serve as involving election law are some claims cry challenge ballot clerk is a far from a reviewed under the rational basis standard. alleging that a denial of the to vote. Likewise, that the dis- the law review article Moreover, the dissent cites Donatelli v. Mitch- heavily upon, specifically sent relies so refutes ell, (3d Cir.1993), 2 F.3d which apply basis would claim that rational review, upheld, under rational basis state involving disparate technolo- review case plan temporarily reapportionment as- *18 gies. discussing When the law that would signed a senator to a different district. state apply challenge disparate to a based on tech- "[tjhese goes The dissent on to state that cases nologies, Hasen concludes Professor a from our sister circuits serve as reminder that, appears v. to mandate strict scru- "Bush Gore majority opinion notwith- the tone of the standing, many voting regula- tiny, application basis review.” and local not of rational state the Ending proper of on overly interpretation narrow the this section an review, briefly Supreme of now review vote” and the standard we “right ignores to of right treatment that the to other lower courts similar Court’s statement Bush in recent encompasses voting rights challenges years.13 than the initial vote “more protec Equal of the allocation franchise. manner as well the its applies
tion
to
of
Protection
Equal
B. Similar
Chal-
Bush,
104, 121
exercise.”
lenges
Technology
to Voting
added).12
also note that
(emphasis
We
presiden-
to
Relatively
us is more similar Bush
after the 2000
the case before
soon
election,
it necessary
did not find
tial
challenging
where
Court
the first case
applying
or cite
when
to address
Burdick
use of certain
as viola-
standard
review.
heightened
Equal
of
tive of the
Protection Clause was
of
heard
District
California.
Central
protection
right
Zealous
to
use
plaintiffs alleged
punch
rights
Few
vote has been
norm.
have
systems
to
card
amounted
vote de-
extensively
protect
vigorously
been so
and
nial in violation of the Fourteenth Amend-
to
vote.
Its fundamental
ed as
the Voting
ment as well as a claim under
defense,
vigilance
in its
nature and
Act.
Rights
See Common Cause Southern
courts, Congress,
from the
both
Leadership
Christian
Great-
Conference
pro
amendment
through
constitutional
Jones,
Angeles
213 F.Supp.2d
er Los
v.
cess,
recognition
stem from the
our
(C.D.Cal.2001).
1106, 1107-08
The Secre-
preservation
democratic structure and the
tary
judgment
of State moved for
on the
rights depends
great
of other
to
extent
pleadings and
court
the district
denied the
effect,
on
franchise. To
from
Yick
motion. Id.
1108.
Bush,
Reynolds
Supreme
to
to
Court
Wo
State,
precedent
Secretary
apply
is clear: we must
strict
Like Ohio’s
Califor-
voting practice
Secretary
power
nia’s
“has the
scrutiny
challenged
of State
voting systems
a list of
from
publish
at issue here.
which
Hasen,
Gore,
dissent,
response
we
Bush v.
29 Fla. St. U.L.Rev. at
are of
13.
course aware
of these
were
that some
cases
395.
pleadings
on a
reviewed
or
motion to
12(b)(6). Coming
dismiss under Rule
from
informative,
Additionally
disposi-
but not
circuits, they
district courts and other
are not
question,
is how
tive
constitutional
(as
binding upon
Supreme
us
Court decisions
Congress
"right
has defined
to vote”
un-
have,
are).
however,
These
do
decisions
Voting Rights
der the
Act. Under
U.S.C.
power
persuade,
irrespon-
and it would be
(c)(1),
Rights
provides:
§
Voting
Act
reasoning
sible not to consider their
—both
good
simply
because
are not
bad—
"voting”
The terms "vote” or
shall include
binding.
agree
If we
with
then
their reason-
necessary
all
a vote effective
action
to make
ought
ing,
apply
we
If
it here.
we do not
election,
any primary, special,
general
or
agree,
adopt
we
then
should not
their reason-
to, registration,
including,
limited
This,
course,
ing.
Supreme
differs from
listing pursuant
subchapter,
or other
decisions,
Gore,
such as Bush
where
required by
prerequisite to
action
law
vot-
apply
reasoning regard-
we are bound to
their
ballot,
ing, casting
having
such ballot
them,
agree
less of whether we
with
find them
properly
appro-
counted
and included in the
"murky,”
Op.
Dis.
or believe that the
respect
priate totals
with
votes cast
its decision
Court issued
public
party
candidates for
office
seriousness,”
Op.
(quoting
at 886
"lack of
Dis.
propositions
Hasen,
votes are received in
which
L.
Gore and
Richard
Bush v.
the Fu-
Elections,
election.
ture
Law in
added).
(2001)).
(Emphasis
Fla. St. U.L.Rev.
*19
In
may
comprehensive
counties
choose.” Id.
1107. This
a more
fash
ion,
punch
systems
included
card
which the
list
district court for the Northern
alleged were
than
plaintiffs
less reliable
District of Illinois addressed a similar
systems, and therefore those
other listed
claim.
Black
McGuffage,
See
(N.D.Ill.2002).
living
punch
counties where the
card F.Supp.2d 889
The court
system
substantially
used were
less began by noting
many
was
prob
election
likely to have their votes counted in viola-
lems have come to
light
years.
recent
tion of the Fourteenth Amendment.
Id.
plaintiffs
Id. at 891. The
in Black made
alleged
also
that the counties
plaintiffs
essentially
the same claims now before this
systems
high
is,
card
“have
ra-
using punch
Court —that
claims under the
minority
comparison
Clauses,
cial
populations
Protection and Due Process
using
voting systems”
counties
other
a claim for
minority plaintiffs
well as
alleged
right
and therefore
denial
under
Voting Rights
Section
of the
Act.
(“Plaintiffs
to vote on the basis of race
under Section
Id. at
allege
that African
Voting Rights
Act. Id. at 1107-08. American and Latino voters are dispropor
tionately forced to
dispropor
use—and are
court
The district
concluded
tionately injured
they
when
use—-the chal
alleged
sufficient facts to survive
lenged voting systems.”).
judgment
pleadings
a motion for
on the
scrutiny
under both strict
and rational ba-
(and
Like Ohio and California
most oth-
(“Even
sis review. Id. at 1109
if the more
states),
er
may
counties
Illinois
ultimately
by
lenient standard is
applied
systems
choose from several voting
certi-
Court, Plaintiff
alleged
facts indi-
fied
the Illinois State Board of Elec-
cating
Secretary
per-
of State’s
jurisdictions
tions.
Id.
Illinois
could
adopt
punch-
mission to counties to
either
choose from four technologies precinct-
—
voting procedures
card
or more reliable
(with
notification),
count optical scan
error
voting procedures is unreasonable and dis-
(without
optical
central-count
scan
error
criminatory.”).
notification), precinct-count punch card
(with
notification)
error
and central-count
claim,
Regarding
Voting Rights Act
(without
notification)
punch card
error
plaintiffs’
the court characterized the
claim
Id.
election
technologies.
Of the 110 local
being “disproportion-
as racial minorities
Illinois,
election,
boards in
in the 2000
ately
denied the
to vote because their
ninety-five boards
used
central-count
in disproportionate
votes are uncounted
punch
systems.
card
Id. Various residual
numbers as
result
mecha-
vote rates were listed
the district court:
supplied.”
nism that
Id. at 1110.
again
average
The court
denied the defendants’
residual vote rate across
Illinois,
Following
president
motion to dismiss. Id.
the deci-
for ballots cast for
sion,
November,
parties agreed
presidential
to and the court
elec-
tion,
requiring
a consent
This rate
approximately
entered
decree
was
3.85%.
juris-
using punch
substantially among
the nine counties in
Illinois
California
varied
[In][j]urisdictions
using optical
card
convert to “other certified
dictions.
voting equipment” by March 2004.
scan
with error notification the
See
ballots
Jones,
than
average
Common Cause v.
No. 01-03470
residual vote rate was less
(C.D.Cal.
(RZX),
ranged from 0.32% in
SVW
than 4%. For abridge- in a denial or in the that “results citywide, 12.59% dure 7.06% rate was citizen of the ward, and of the ward, in the 37th ment 12th 12.4% of race or on account 29th to vote precinct of the United States in the 48th 36.73% 1973(a). § Section in color.” U.S.C. Similarly, the rate was 5.23% ward. and includes the franchise County, broadly protects in the 8.8% Cook suburban effec- necessary to make a vote County and “all action Township of Cook Cicero having including “casting a ballot The rate County. in tive” Alexander 7.48% 42 U.S.C. properly.” counted County, 2.48% such ballot- was 3.17% Whiteside 2(b) (c)(1). pro- of the Act § Sangamon 1973Í Section County, and 2.15% in Will proce- practice an electoral jurisdic- vides that In the three election County. the franchise in a with- results violation scan ballots dure optical tions which use (a) average residu- under section out error notification For more than 4%. al vote rate was circumstances, if, totality on the based in all of rate was 10.88% example, the processes political that the is shown Louis, 20th but 22.30% the St. East in the nomination or election leading to Louis. precinct of East St. are not subdivision political State or by mem- open participation case, equally based As in the instant Id. at 893. protected citizens of a class of rates, bers plain- vote various residual (a) in that its of this section subsection living in argued tiffs “individuals than opportunity have less members greater have a jurisdictions card punch par- electorate to other members of the having then- probability statistical process and to ticipate political ... that the counties counted [and] votes of their choice. representatives elect larger system card have punch with the counties minorities than do populations of 1973(b). § 42 U.S.C. thus use voting systems, and using other statutes, the district on these Based machines has a dis- of those less accurate are two “[t]here court in Black found at minority voters.” Id. impact on
parate
statutory
to a claim under Sec-
elements
894.
2:(1)
‘standard,
of an electoral
tion
the use
the claim
The district court addressed
(2)
procedure,’
resulting
practice or
12(b)(6)motion to dismiss.
the context of a
[minority]
opportunity
of the
diminution
rejected
court first
the defendants’
political pro-
in the
participate
‘to
voters
mootness, id.
standing
claims based on
representatives of then-
cess and to elect
”
894-96,
rejected the defen-
and also
(quoting
42 U.S.C.
choice.’
Id.
12(b)(6) claim as to the merits.
dants’
1973(a)-(b)).
court then concluded
§
met this re-
plaintiffs’ complaint
that the
plaintiffs’
The court first addressed
by identifying
prac-
an electoral
Rights
quirement
Voting
claim under Section
(“deficient
system”),
alleged
ballot
that “the
tice
Act of 1965. The court stated
system, the
of the deficient
that because
emphasized
[that
opportunity
have less
minority plaintiffs
interpreted
‘should be
Voting Rights Act]
members of
electorate
than other
provides
in a manner that
the broadest
repre-
and elect
process
in the
combating
participate
racial discrimi-
possible scope in
choice.
Id.
of their
(quoting
sentatives
nation.’” Id. at 896
Chisom
could dem-
380, 403,
alleged
that the facts
Roemer,
Finding
(1991) (internal
“participation
quotations
onstrate
According
panel,
to the
contest.
authority on both sides of the
legal
that
requires is some assurance
stitution
right
that the
to vote is
There is no doubt
requirements
equal
rudimentary
fundamental,
cannot
a federal court
fairness are
and fundamental
treatment
(cita-
enjoin a state elec-
interfere with or
lightly
Id. at
satisfied.
(citation omitted).
In a
omitted).
at 918
concluded tion.” Id.
panel
The
also
tions
of the
paragraph discussion
scrutiny
ordinarily
appro-
short one
that strict
claim,
en banc court
Equal Protection
in a situation akin to the
standard
priate
previously had occa-
have not
the use of deficient
stated: “We
presented
one
because
precise equal protec-
sion to consider
technology
right
the fundamental
affects
panel
That a
tion claim raised here.
vote counted.
Id. at
have one’s
Nevertheless,
unanimously
the claim
this court
concluded
the court found
S.Ct.
argu-
that the
provides
had merit
evidence
question
not reach the
because
that it need
jurists
of ment is one over which reasonable
a likelihood
demonstrated
Nevertheless,
great
may
of the
differ.” Id.
regardless
on the merits
success
a
paid
principle
federal
employed. Id. at 900. heed
of review
standard
enjoin a state elec-
lightly
court should not
tendered sufficient evi-
“Plaintiffs have
tion,
court
that the “dis-
the en banc
held
to demonstrate a likelihood of suc-
dence
discretion in
ration-
trict court did not abuse its
establishing
that theré' is no
cess
plaintiffs have not
systems
holding
estab-
using voting
al basis for
have
on the
probability
a clear
of success
‘unacceptable’
some
lished
been decertified as
claim.”
equal protection
merits of their
and not others.” Id.
counties
added).
(emphasis
Id.
then heard en banc and
The case was
plaintiffs’
court then turned to the
was
South-
panel
decision
reversed.
claim,
Voting Rights Act
which
referred
Registration
Project
Education
west Voter
Cir.2003) (en
Nevertheless,
(9th
noting
Id.
“stronger.”
to as
Shelley,
v.
344 F.3d
banc).
record,
court,
dispute in the
howev-
opinion
“significant
in a
curiam
per
er,
dissents,
degree
significance
of the
that the dis-
as to the
with no
concluded
court con-
disparity,” the
vote]
[residual
trict court did not abuse its discretion
shown
“although plaintiffs
have
preliminary injunction.
Id.
cluded
denying
merits,
court, however,
reject
of success on
we
possibility
did not
918. The
stage
grants
right
at this
have
to vote to some residents
say
cannot
others,
denying
while
the vote to
then
Id. at
we
strong
likelihood.”
918-
shown
subject
legislation
must
to strict scru
19.14
tiny and determine
whether
exclusions
A
the lower court cases dem-
review of
necessary
promote
compelling
application
onstrates
consistent
(citing
state interest.”
Id.
Dunn v.
principles established
Blumstein,
330, 337,
Each
the cases discussed above
Court.
(1972)).
legis
IV.
pos-
vote.
conclusion
right to
No other
is
A. Standard
Review
thus,
from the
law and
sible
case
strict
judgment
from a
entered
appeal
“On
scrutiny applies.15
trial,
following a bench
we review
dis-
precedent
All of the
indicates that hav-
findings
factual
for clear error
trict court’s
vote
counted
funda-
ing
properly
one’s
is
conclusions de novo.” Press-
legal
its
Bush,
e.g.,
Bank,
franchise. See
182, mental
v. Franklin Nat.
F.3d
man
384
(indicat-
104-05,
(6th Cir.2004).
525
531 U.S.
S.Ct.
having
counted
ing
equal
one’s vote
on
Analysis
B.
jurisdic-
with others in the relevant
terms
quintessential “right
tion is the
to vote”
precedent
our
Reynolds,
case);
Mixon framework instructs
that if
S.Ct.
own
(“[T]he
suffrage
right
can be de-
permitting
Ohio statute
localities
use
“infringe[s]
nied
or dilution
voting technology
on
debasement
deficient
vote,”
scrutiny
just
effectively
of a
vote
as
right
ap weight
strict
citizen’s
then
wholly prohibiting
free
plies;
“infringe
if the statute
exercise
does
South,
vote,”
franchise.”);
merely regulates
right
U.S. at
franchise,
J.,
aspect
(Douglas,
tangential
dissenting)
some
(“There
Mixon,
applies.
right
basis
than
then rational
review
more
vote
begs
question
piece
paper
F.3d at 402. This
mark a
*24
in a
to
“right
encompasses.
drop
right
pull
what the
to vote”
it
box or the
a lever
We
right
that
in
easily
right
conclude
the
to have one’s
booth. The
includes the
fraud,
Again,
misinterprets
right
the dissent
restricted
to vote.
Burdick
the
There was
”
"harmonizing]
our decision
allegation
when
it with
no
the case that the electronic
Op.
prop-
at
dissent
Mixon. Dis.
885. As the
system
to its inherent nature —was less
—due
notes,
regu-
erly
distinguished
Mixon
between
likely
previously
to count votes than the
"infringe
right to vote”
lations that
on the
place system.
any
could there be
Nor
conclu-
those that do not. The dissent then concludes
paper
sion that the lack of a
trail restricted
together
reading
Mixon and Burdick
re-
Thus,
right
applied
to
the
the
vote.
court
apply
quires
we
rational basis review.
is,
basis
rational
review—that
whether the
(and
dissent)
by the
These cases
others cited
government's conclusion that the risk of fraud
however,
distinguishable,
because
do
manipulation
prevent
was insufficient to
infringe
right
on the
to vote or the man-
change
system
to the electronic
was ration-
Burdick,
ner of its exercise.
the First
al. With no
that the
evidence
decision was
right
Amendment
to ballot access was
is-
is,
irrational —that
no evidence that some-
sue,
right
properly
to
not the
have one’s vote
unlikely
one’s vote
to be
was
counted—the
Likewise, Mixon,
was
counted.
there
no
upheld
way
court
decision. That is
the
in no
Thus,
right
to vote for
office at issue.
(or controlling)
inquiry
inconsistent
over our
allowing
the appointment
law
of the offi-
light
cases
here. Even in
of the
the dissent
vote,
away any right
cials did not take
to
cites,
simply
we
cannot subscribe to the dis-
right
because the
to vote did not exist for that
sent’s belief that in the case before us—-where
office. The dissent also relies on Weber v.
technology
a disparate
deficient
results in
(9th Cir.2003),
Shelley, 347 F.3d
case
counting
proper
likelihood
of votes—
directly
Op.
point.”
claims "is
Dis.
right
infringed.
that the
is not
to vote
Under
Weber, however,
no
885. In
there was
claim
apparent understanding
the dissent's
residing
parts that voters
in different
vote,
right
right
to
that the
it seems
to vote
having
state had a lesser likelihood of
their
Rather,
infringed
would not have been
in Bush v.
counted.
issue was
votes
over
Gore because
voters were
electronic-voting system
all
allowed to cast
whether an
without a
trail,
equal
alleged
properly
paper
ballots on
terms and
marked
which the
was
susceptible
potential
correctly
manipulation
to
ballots would
counted.
be
compelling justification
ballot counted.
It also
right
light
to have the
of the fun-
right.
counted
damental nature of the
right
have the vote
See Fron-
includes
discount.”)
Richardson,
677, 690,
tiero v.
411 U.S.
at full value without dilution or
(1973)
(citations omitted);
(plurali-
S.Ct.
easily premised solely It is deconstructed. “persuasive that our decision is to only suggesting on Professor Hasen’s article that controlling. extent Bush v. Gore is given that v. Gore should be Bush not I], Neither Shelley my [our decision or value. precedential Because dissent view, successfully the compelling refutes that concludes the decision should not be supplied reasons Professor for Hasen (because precedential value given refusing to ‘take equal Bush v. Gore’s ” seriously did not take the case and protection holding seriously.’ Op. at Dis. inconsistency apparent prec- with other Hasen, (citing 29 Fla. St. U.L.Rev. at edent) it not mention the fact 380). does that dissent, however, men- fails to Hasen on to goes Professor conclude that tion Professor Hasen’s ultimate conclusion followed, if Gore it Bush v. were would that “if Bush prece- v. Gore indeed has result reach value, dictate the we here.25 Unfor- clearly dential it to apply should dissent, tunately for the inferior courts do prevent of voting use these different luxury suggesting Hasen, not have the that a systems in the same election.” Gore, simply should not v. Court decision Bush 29 Fla. U.L.Rev. at 395. St. luxury legal power be followed without some tenable ba- Without the to decide course, for, judged 24. This conclusion is correct be under the standard of strict scru- earlier, suspect is, we noted to would be hold tiny that the state must have a —that equal protection protects right that compelling treating interest in voters differ- recount, have vote in a one's counted ently narrowly and that the must be means pro- us to conclude that the Clause does not to meet that The Court tailored interest. right tect the to have vote counted one’s in the nothing suggest Bush v. did [in Gore] Bush, first instance. See also 531 U.S. at anything scrutiny, that less than strict such L, (“Thus, dissenting) (Breyer, test,’ as an easier to meet ‘rational basis system in a that allows counties use differ- apply analyze should the burdens on the systems, already types voting ent voters fundamental in this context. polls unequal arrive at with an chance Hasen, Gore, Bush v. 29 Fla. St. U.L.Rev. at votes I do not their will be counted. see dis- 389. Professor Hasen further refutes the how the fact that this results from counties’ claim rational review would sent’s basis selection of different machines rather challenge apply involving to a case than a court order the outcome makes fair.”). disparate technologies. more use He concludes appears "Bush v. to mandate strict Gore 25. Hasen’s article contradicts the dis- also scrutiny, application rational basis re- basis sent’s conclusion that rational review Gore, Hasen, St. view.” Bush v. 29 Fla. applies. U.L.Rev. infringing It is hornbook law that laws rights, including voting, fundamental must of this sort decision. Future claims we want Ohio’s Supreme Court decisions which factors follow, these various Hasen’s ultimate will evaluated with find Professor be we If, conclusion, reasoning hypothetical Bush in mind. the dissent’s here, applies sound. technology yields be Gore where one example, another *31 error rate and 0.1% us Finally, criticizes for not the dissent rate, is and a lawsuit a 0.01% error precise a mathematical formu- articulating one, ques- the same filed similar this voting technology determining la for when the context will have to be asked and tions and it is not. Pre- is constitutional when If challenge and of the studied evaluated. formulas, however, have cise mathematical technology would switching to the new rights or part never a of cases been State, technology the was bankrupt the or A involving judicial scrutiny. strict cases or development phase, potential in its formula judicially imposed mathematical of any for or for number high, fraud was evaluating rights cases would be for that the not believe reasons State did say arbitrary. simply cannot purely We implemented, be technology properly could that x% rate raises constitutional error then, today, of our decision light even y% concerns error rate does not. Nor If, however, may switching the claim fail. so re- has the Court done only mini- technology provided new applying so in case quired us to do inconvenience, Rather, rea- scrutiny.26 strict when confronted mal then State’s questions, a than com- might with difficult constitutional be found to be less sons analytical necessary. case, is approach reasoned we do not seek to pelling. that strict plaintiffs Once the establish procedures, election constitutionalize local scrutiny put must a applies, State forth uniformity and nor we seek to mandate do infringement a reason its of compelling voting procedures, nor equality in absolute we, reviewing right fundamental and consti- do hold that notice is we court, against evaluate that reasons must mandated; tutionally merely we evaluate analysis plaintiffs’ claims. This neces- light of the State’s vote sary fac- includes consideration various justifications for the two proffered using tors, financial, including the and legal, at and hold challenged technologies issue Dunn, 343, e.g., 405 U.S. at practical. See compel- State’s reasons are not (“And other, 995 if there are S.Ct. inquiry Our here is aided Ohio’s ling. ways goals reasonable achieve those adopt litigation position decision constitutionally awith lesser burden on public is undermined its actions and may protected activity, not choose State hold that the two words. We therefore interference.”). way greater satisfy technologies challenged here fail to “rudimentary treat- requirements equal do review such claims a vacu-
We not Bush, fairness,” ment fundamental um but so with a focus on the real do 525, justifications and that based implications world U.S. S.Ct. We are example, Reynolds, philosophy on their citizens. 26. For the Court stated: cal entering dangers apportioning We cautioned about are told matter legislature representation in is a a state political into thickets mathematical complex many-faceted one. We a denial quagmires. Our answer this: oi rationally States advised that can consider rights constitutionally protected demands population apportion- other than factors ing judicial protection; our office our oath and representation. legislative ad- We are require no us. less of power not to monished restrict impose differing politi- views as States to below, presented plain- on the evidence in “aa manner that provides the ‘broadest tiffs established a violation of possible scope’ combating racial discrim Protection Clause.27 Chisom, ination.” (internal omitted).
S.Ct. 2354 quotation Moreover, under the 1982 V. amendments to Act, section 2 of the we are concerned with Voting Rights Act Claim Plaintiff’s practice, the results of a govern African-American also ad- Chisom, ment’s intent. 501 U.S. at vance claim under 2 of Section the Vot- 2354; 1973(a). § U.S.C. Hamilton, ing Rights against Act Mont- 2(a) Section prohibits the Act
gomery, and Summit Counties based on *32 any the use of practice electoral or proce their punch technology. use of card After dure that “results a denial or abridge trial, the bench the district court concluded right ment of the any citizen of the that plaintiffs’ “Voting Rights Act United to States vote on account of race or claim fails because their alleged injury color.” We have noted that § does not amount to a vote denial under Voting Rights of the Act.” This conclusion Section unlike other legislation federal was based on the legal interpreta- court’s that prohibits discrimination, racial does Voting Rights tion of the Act that a vote not require proof of discriminatory in- cognizable only denial claim is “when a Instead, tent. plaintiff a only need show municipality state or employs ‘practice a that challenged require- action or procedure’ that results the ‘actual’ deni- ment has a discriminatory effect on right al of the to vote on account of race.” protected members of a group: A viola- Finding that plaintiffs “none of the ... (a) tion of subsection of this section is claim that have been denied to access if, established totality based on the polls,” the court held that “these facts circumstances, it is shown that the do not allow this Court to conclude that political processes leading to nomination ‘actual’ right denial of the to vote on ac- or election in political the State or subdi- Further, count of race occurs.” the dis- vision are not equally open partic- to trict court concluded that the contention ipation by members of a class of citizens “punch that subject card ballots Afri- [the (a) protected by subsection of this sec- can-American plaintiffs] greater to a prob- tion that its oppor- members have less ability that their votes will not be counted tunity than other members of the whites,” than is insufficient to constitute a electorate to participate political Thus, denial right of the to vote. process and to representatives elect district court plaintiffs held “that the have their choice. not established their vote denial claim.” Bd., Moore v. Detroit School Reform (6th Cir.2002). The Court has that said F.3d right The Act, in interpreting (c)(1) § we should read it in 42 vote is defined U.S.C. 1973l 27. we plaintiffs Because find in favor of the ments would also be free to turn the ratchet grounds both cheaper technology.” down to non-notice Id. —under scrutiny strict and under rational basis re- engage We choose not to in the dissent in this view—we do not reach their claim under the Instead, simply ques- battle. we note that the dissent, however, Due Process Clause. The day tion remains for another as to whether points alleged grasp out our failure to the idea ratcheting such a would down violate the Due equality one-way Op. is not a street. Dis. Process Clause. Thus, view, "govern- in the dissent's necessary, Voting of the necessary to make a tent is “Section include “all action requires only showing Act a Rights including “casting ballot
vote effective”
Mixon, 193
discriminatory effect.”
F.3d
properly.”
having
ballot counted
such
at 70-
(citing Thornburg, 478 U.S.
clearly encom-
at 407
language of
Act
2752). Moreover,
claims un-
citizen of
“right
within
passes
Voting
require
Act
“an
Rights
der the
right
the United States to vote”
design
intensely
appraisal
local
of the
properly.” Be-
such ballot counted
“hav[e]
prac-
electoral
plaintiffs
impact”
challenged
the African-American
cause
78, 106
Thornburg,
de-
they are
tice.
disproportionately
claim that
omitted).
(internal quotation
right
their ballots counted
nied
have
erred
con-
the district court
properly,
alleged
punch
plaintiffs
here
not state
cluding
did
cards in these three counties have
dis
to vote
right
for a violation of the
claim
criminatory
presented
effect and
evidence
Voting Rights
under the
Act.
support
their claim. Akin to Southwest
Voter,
plaintiffs presented
evidence
Finding
plaintiffs’
evi
demonstrating
“minority voters
dis
supports
denial of the
dence
proportionately
punch-card
reside in
coun
2(b)
vote, the next
under section
inquiry is
*33
that,
counties,
even
those
ties
within
Act to
the evi
of the
determine whether
minority
discard
punch-card machines
of the
dence establishes
violation
Act.
higher
votes at
rate.” 344 F.3d
Chisom,
394, 111
S.Ct.
See
According to the
en
Ninth Circuit
banc
only incorporated
not
(“Congress
the
court,
violation,
“[t]o establish
Section
formerly
in the
that
paragraph
results test
only
need
‘a
plaintiffs
demonstrate
causal
desig
§
the
also
constituted
entire
challenged
between the
connection
(a)
paragraph
nated
as subsection
practice
prohibited discriminatory
and [a]
(b)
a new
to make clear
added
subsection
”
(quoting
result.’
Id.
v. Salt
Smith
River
application
that an
the results test re
Agric.
Project
Improvement & Power
inquiry
totality
quires
into ‘the
the
(9th
Dist.,
Cir.1997)).
109 F.3d
”).
2(b) states that
circumstances.’
Section
practice
procedure
an electoral
or
violates
part
analysis,
On this
of the
the
(a)
franchise under
section
very
findings
district court made
few
if,
circumstances,
totality
on the
based
on its
based
determination under section
political processes
it is shown
2(a). These
included the
finding
finding
leading to
in
nomination or election
in
many
Ap
that there
residual votes
political
are not
State
subdivision
palachian
virtually
counties with
non-exis
by
mem
equally open
participation
minority populations, and that under-
tent
a class
protected
bers of
of citizens
(which
County
Franklin
was not
(a) of
in that
subsection
this section
its
Act)
than
higher
sued under
is
opportunity
have
than
members
less
(which
County
Hamilton
was sued under
par
other members of the electorate to
Act). Essentially, the court found
political
in the
and to
ticipate
process
white
in other counties with
because
voters
representatives
their choice.
elect
minority
from
populations
minimal
suffer
1973(b).
§
likelihood
votes will
42 U.S.C.
Consistent
similar
that their
not
test,
counted,
this
noted that un-
here have
results
Court has
be
not
race based
under the
a sufficient
under the Act.
like
claims
made
claim
any findings
Protection Clause of Fifteenth Amend-
district court did not make
2(b)
ment,
discriminatory in-
Act and did
where evidence of
under section
not
make the ultimate determination as to
present
The defendants did not
contradic-
their claim
plaintiffs proved
whether the
tory evidence and
dispute
did not
totality
under the
of the circumstances.
exist,
racial disparities
but instead assert-
Thus,
appropriate
course for
ed that education and socioeconomic condi-
Court is to remand to allow the district
tions,
race,
account for the disparities.
court to make
findings
detailed
the first
note, however,
We
that “[t]he essence of a
below,
analysis
instance. To aid
§ 2
law,
claim is that a certain electoral
however, we do note that
De
Johnson v.
practice, or structure interacts with social
rejects
Grandy
argument
that vote
and historical conditions to cause an in-
part
dilution in one
can
the state
be
equality
opportunities
enjoyed by
part
remedied
another
of the state.
black and white voters to elect
pre-
their
997, 1019,
representatives.”
ferred
Thornburg, 478
(1994) (rejecting
premise
L.Ed.2d 775
U.S. at
technology.” The first
ery
Counties.
process requires
plaintiffs
certification
23(a).
is,
satisfy Rule
That
VII.
may
or more members of
class
One
Violations of
representative parties
or be sued as
sue
deserving
protection
no less
Clause are
(1)
only
if
the class is so
on behalf
all
accomplished
are
with a
because
joinder of all
is
numerous that
members
preju-
modern machine than with outdated
(2)
questions
there are
impracticable,
to caution not-
appeal
dices. The dissent’s
(3)
class,
to the
or fact common
law
[ju-
withstanding,
ingredient
“the basic
representative
claims or defenses of
principle,
is
and
should
decision
dicial]
typical
are
of the claims or de-
parties
parceled out a
compromised
not be
and
(4)
class,
the represen-
fenses of
case,
another,
little in one
a little more
fairly and
parties
adequately
tative
will
eventually
until
the full
someone receives
protect the interests of
class.
principle
If the
and con-
benefit.
is sound
23(a).
Fed.R.CivJP.
stitutional,
birthright
every
it is the
American,
begrudging-
not to be accorded
plain-
The district court found
“the
ly
special groups only,
or to
piecemeal
representatives
are not
for
proper
tiffs
everyone
entirety
in its
whenever it
disagree.
in other counties.” We
voters
WARREN,
play.”
is
into
EARL
brought
satisfy
clearly
require-
THE
OF
JUSTICE
MEMOIRS
CHIEF
23(a)
Rule
and have
ments of
satisfied
(Madison
2001)
EARL WARREN
Books
See
proving.
their burden
so
Senter
(1977). The district court’s decision with
(6th
F.2d
Corp.,
Motors
Gen.
regard
plaintiffs’ equal protection
Cir.1976). The
class is so numerous
is RE-
claim is REVERSED. The case
joinder
impracticable,
ques-
there are
judg-
MANDED with instructions to enter
class,
of law
fact common
tions
plaintiffs.
ment in favor of
With re-
representative parties
claims of
gard
plaintiffs’ Voting Rights
Act
class,
typical of
claims of the
and the
claim, the district court’s decision is VA-
representatives
fairly
adequately
will
CATED,
proceed-
REMANDED
Further,
class.
protect the interests of the
*35
ings
opinion.
consistent with this
have
plaintiffs
we find
the
satisfied
step
their burden under the second
of the
GILMAN,
LEE
RONALD
Circuit
23(b).
analysis
Rule
Under section
Judge, dissenting.
(b)(2),
party opposing
“the
the
[Sec-
class
majority today
by judicial
retary
imposes
State]
has acted
refused to act
important changes
on
to the Ohio elec-
[by decertifying
technology]
deficient
decree
class,
generally applicable
system, doing
largely
toral
so
reliance
grounds
the
murky
on
thereby making appropriate
injunc-
final
the
Court’s
decision
Gore,
Bush
corresponding declaratory
tive relief or
re-
v.
S.Ct.
(2000)
curiam),
respect
(per
lief with
to the class
a whole.”
L.Ed.2d
Thus,
panel opinion
district
Ninth Circuit
we reverse the
court’s order
vacated
dispute, and
ap-
and conclude that class certification is
California recall-election
two
plaintiffs pursuing
district court cases that never reached a
propriate
the
state-
view,
my
final
on the
In
judgment
relief under
the
merits.
wide
weight
these
cannot
the
appro-
and sub-class certification is
sources
bear
Clause
them,
majority places
the
on
plaintiffs
for the African-American
should
priate
subjecting
not form the basis for
an inde-
conclude
reading
majority
after
the
opin-
local
terminate number of state and
elec-
ion that federal courts
long
have
dealt with
tion
strictest
level of con-
decisions
the
challenges analogous to the one made in
scrutiny.
stitutional
case,
present
and that strict scrutiny
universally recognized
been
ap-
I would
a more
as the
approach,
take
cautious
recognizes
primacy
propriate
one that
majori-
standard of review. The
legislative
executive and
branches in the
ty’s lengthy exposition of the fundamental
process
significant
electoral
and the
costs nature of
to vote cites many
majority’s
holding
place
will
purportedly
effect,
cases
to that
taking
governments,
state and local
the entities
quotations out of their factual and legal
charged
that are
aspects
most
of elec-
context. A closer examination of those
tion administration.
I
Although
agree
cases, however, reveals that the challenges
majority
with the
that the
have upheld in
significantly
them were
different
moot,
standing and that
is not
I
the case
from
case,
the one before us in
present
join
majority’s analysis
cannot
of the
appropriate
standard of re-
equal protection
Voting Rights
Act
in voting-rights
view
cases is far from set-
challenges
brought
plaintiffs,
or its
tled.
cursory
reversal
the district court’s de-
nial of class certification.
I
Accordingly,
Voting-rights precedents
A.
respectfully dissent.
My analysis
equal protection
Sanders,
Gray
question
proceed in
I
steps.
will
four
will
(1963),
first
I believe that
the Su- ple, the Supreme Court invalidated Geor-
preme
voting-rights precedents
cit- gia’s “county
system”
unit
for counting
majority
ed
are distinguishable
in party primaries
votes
that were held to
establish,
from
present
case and do not
nominate candidates for the United States
asserts,
majority
scrutiny
as the
that strict
Senate and several state offices. Under
is the proper constitutional standard of
original
county
system,
unit
a resident
review.
parts my
The second and third
in the
populous county
least
the state
analysis question
precedential
value of
“had an
influence
the nomination of
Bush v.
and the other
Gore
authorities on
equivalent
candidates
to 99 residents” of
relies,
which
majority
demonstrating
county.
the state’s
populous
most
Id. at
why
expansive reading
authori-
those
371,
OF REVIEW gave person tion it “one Clause because ... or 10 of power A unfamiliar twice times reader with the voting-rights precedents might person Court’s another in a statewide election 882 rural area or that the Court announced standard of
merely because he lives in a
strict-scrutiny
similar to the
stan-
in the
rural coun-
review
he lives
smallest
because
reviewing
Court,
currently
laws
379,
applied
dard
ty[.]” Id. at
burdened citizens’ fundamental constitu- proper B. Rational basis is the stan- travel”); tional Greidinger dard of review Davis, (4th Cir.1993) F.2d (classifying Dunn “involving case vot- Court has never adhered access”). qualifications er legislation and ballot to the view that all or practices *38 884 interests, “taking into consideration right must sub- lated
that
to vote
be
affect
Greidinger,
make
jected
scrutiny.
strict
See
the extent to which those interests
to
(collecting cases in which
rights.”
Burdick
504 U.S.
and
upon
tions
the First
Fourteenth
(1992),
S.Ct.
cisely county had PROTECTION because her abandoned AND BUSH Y. paper traditional of the GORE ballots favor newly technology. available The contrast above, explained As I have neither the epitomizes pre- the cases the between two Court nor precedents venerable Warren dicament which election officials find voting-rights current cases they upgrade if vot- themselves—damned support to majority’s either the decision machines, ing if do not—and damned subject challenged voting practices the supports adopting further constitutional scrutiny strict the majority’s conclusion standard of that affords review state practices those are unconstitutional. flexibility necessary local officials the actually analytical provides What basis system an regulate constantly election then, majority opinion, for Su- flux. preme decision in Bush v. Court’s Gore note, however,
I cannot
and a
help but
series of lower-court cases that have
majority’s
purported
adopt
reasoning
insistence that
result here
of that
applied
if it
ably
would be
same even
ration-
decision. For the reasons
articulated
Maj. Op.
scrutiny.
leading
expert
al-basis
872. The
election-law
—reasons
majority
unsupported
thoughts my
to which I will add a
makes
assertion
few
having
the district
for
own—I
that we
despite
chided
court
believe
should heed
is,
doing
thing
summarily Supreme
warning
own
and limit
same
Court’s
—that
concluding
peculiar
the result
the reach of Bush v. Gore to the
would be
regardless
appropriate
extraordinary
same
stan-
facts of that case. See
Hasen,
Maj.
atOp.
dard
review.
852-53. If the
Bush v. Gore and the Future Elections,
justifications
proffered
employ- Equal
state’s
Protection Law in
Fla.
ing
truly
(“Language
certain
methods
St.
at 379
were
U.L.Rev.
flimsy
them,
per
majority portrays
opinion
holding]
as the
then
curiam
limits [the
case, or, most,
majority
no need
cases
would have
to discuss
facts of the
jurisdiction-wide
variety
where
recounts
or-
the use of
mechanisms
dered.”).
majority
jurisdiction,
a dif- within a
though
chosen
even
different
path,
unjustifiably expands
ferent
one that
mechanisms will have different
levels of
in recording
Bush
into a landmark
effectiveness
precedent
v. Gore
voters’ inten-
tions[.]”);
fundamentally
Amar,
Vikram
designed
transform fed-
David
Adven-
Democracy:
eral
tures in Direct
Top
election law.
Ten
Constitutional Lessons
from
Califor-
given
A.
Bush Gore should not be
Experience,
nia Recall
92 Cal. L.Rev.
reading
expansive
*41
(2004)
955
(explaining
Supreme
that
the
Court
in Bush v.
“explicitly
Gore
disa-
Professor Hasen summarized his three
vowed” the notion that “the Equal Protec-
for doubting
prec-
“reasons
Bush v. Gore’s
tion
...
Clause
invalidates
statewide
edential value” as follows:
election where different kinds of voting
limiting
opinion,
language
[T]he
machinery throughout
may
the state
lead
of
lack
seriousness with which the
to nontrivial differential error rates across
analysis,
Court undertook its own
counties”).
inconsistency
jurispru-
with other
majority
dence
of
all
Justices
case,
course,
In
present
of
no state-
point
assuming
in the direction of
that
issue,
court order is at
governmen-
and no
good precedent
Bush v. Gore is not
for
entity
tal
has ordered a “statewide reme-
an expansive reading
equal
of
protection
dy.”
allegations
The
these plaintiffs
of
are
law in elections.
far cry
a
from the lack
uniform
rules for
discerning the
meaning
already
votes
I
Id. at
will
first two
391.
focus
cast, which is what
Court in Bush
v.
per
opinion,
these
reasons.
its
curiam
Gore found to be a constitutional violation.
that
majority
Court
cautioned
its
Hasen,
See
29
Fla.
U.L.Rev.
384
St.
analysis
present
was “limited to the
cir-
v.
(explaining
majority
that the Bush Gore
cumstances, for
problem equal pro-
Supreme
identified the Florida
Court’s
tection in election processes generally
failure to formulate uniform rules for de-
presents many complexities.” Bush v.
termining voter intent
the reason the
Gore,
109, 121
counted.
of this
disin-
Because
B.
innovate,
Gore,
improperly
Other lower courts have
centive to
Bush v.
absent
expanded
solutions,
the reach
Bush v.
other
Gore
legislative
might “have
freezing
the unintended effect of
our vot-
This is not
first case
which
ing mechanics at the current level of tech- plaintiffs have utilized
Bush
Gore as
nology.”
I
Id. at 402. will return to this
principal
effecting
their
tool for
change in
point
Part III below.
policy.
electoral
Mulroy,
See Steven J.
analysis,
In the final
I
Lemonade
Can
believe that the
Lemons:
Advocates
from
*43
Convert Bush v.
best course is to understand the
Gore Into Vehicle
Supreme
for
Reform?,
Poverty
Court’s
in
9 Geo.
Pol’y
decision
Bush v. Gore as a
J. on
L. &
(2002)
preserve
cases,
to
quo
(citing
shield
the status
in an
358-59
various
Gore,
all
in
process
by extraordinary
beset
filed
the wake
Bush v.
electoral
temporal
pressures.
challenge
there-
that
the
certain
political
I
use of
join
Equal
fore decline to
the
in
methods under
the
majority
permit-
Protection
Act).
ting litigants
Voting
use that
Clause and the
Rights
to
decision as a
majority
analysis
bases much
sword to strike down state election
of its
on
policies
that,
cases,
the
ripe
improvement,
strength
including
while
for
were
these test
McGuffage,
F.Supp.2d
on
Black v.
209
889
previously
ground.
solid constitutional
(ex-
(N.D.Ill.2002),
Posner,
Sup.Ct.
See
Rev. at 41
and Common Cause v.
Jones,
(C.D.Cal.2001).
F.Supp.2d
in
plaining
that differences
the
862-67;
Maj.
Mulroy,
at
vote-counting
Op.
methods
coun-
see
9 Geo.
by
used
(cit
Poverty
J. on
L.
at
previously
Pol’y
ties “had not
been
to
&
358-60
thought
laws”).
deny
ing
equal protection of the
Black
Common
as cases
Cause
“voting rights
advocates” filed
an
conclusion,
not,
In reaching
I
as
am
attempt
push
“to use
[Bush
]
v. Gore
majority charges, making
the
the nonsen-
reform,
in
long
by
overdue electoral
claim
sical
that Professor Hasen’s law re-
very
voking
equal protection theory
the
view article has overruled Bush
Gore.
v.
by
relied
the
conservative Bush ma
Maj. Op.
I am
See
at 874.
instead faithful-
below,
jority”). Like the
court
district
ly following
explicit
the
Court’s
however,
unpersuasive.
I find these cases
analysis
admonition
its decision that the
employed was “limited to
cir-
present
the
The chief weakness of these cases is
Bush,
109, 121
per
opinion
cumstances.”
531 U.S. at
their reliance on the
curiam
majority’s
primary
S.Ct. 525. Lost in the
rebuttal Bush v.
as the
basis for their
Gore
my
recognition
key
Registra-
dissent is the
decisions. See Southwest Voter
Despite the
firm rebuke that the
Project
Shelley,
344 F.3d
rather
tion Educ.
Cir.)
curiam)
I),
panel
(9th
court dealt the
decision
(Shelley
en banc
(per
I,
(9th Cir.2003) Shelley
majority
insists that
banc,
en
the whether strict merits the (describing plaintiffs’ contention “that scrutiny appro- or rational was the basis in Angeles Diego a vote cast Los or San is priate Id. at standard review. 900. weight as a entitled same vote cast likely, in the Success on the merits was Francisco”). I explained in San As in Part view, panel’s because claim plaintiffs’ the above, however, plaintiffs I.A. the are not “present[ed] precisely almost the same is- asserting that properly one marked and sue [Supreme] as the considered in Court another, vote than tabulated has less value Bush," Equal where the Court found an technologies but instead that certain de- violation. Protection Id. at 895. Within a a voter’s handing crease chance of in a however, decision, panel’s week of that will properly marked ballot then be review, granted va- Ninth Circuit en banc claim, tabulated. when properly This opinion, unanimously panel characterized, cated the fall within does not the am- conclusion to that opposite reached a Gray, Wesberry, Reynolds, bit II, Shelley F.3d at panel. establishing caselaw Court’s to an equally-weighted vote. Stripped long- using of their connection counties lever or electronic-voting precedent, standing Supreme the machines. The rely also on di- majority Shelley I opinion persua- inter-county comparisons, rect pointing out only Cuyahoga County, sive to the extent that Bush v. Gore is punch- which used view, controlling. opinion, my presidential issue, Neither cards in the elections at successfully compelling refutes the reasons had an error four higher rate times than supplied by refusing County, Professor Hasen for Franklin where electronic-voting equal protection to “take Bush v. Gore’s machines were used. Hasen, holding seriously.” 29 Fla. St. indicate, majority What does not I U.L.Rev. 380. What believe makes however, is which of these numbers is majority’s more opinion troubling even constitutionally significant. Is the consti- than that panel of the Ninth Circuit is its problem tutional fact that voters in precisely aspects failure to articulate which punch-card districts face an error rate voting system of Ohio’s violate Equal high precinct-count twice as as voters in Clause, and what state and local so, optical-scan districts? If improve- then officials should do the future to amelio- technology ments in will necessarily perceived problems. rate the constitutional equal protection cure the problem. This is I turn now to these concerns. so because a voter in county with a much-improved residual vote rate of 0.2% EQUALITY
III. AND VOTING point neighboring county could to a where PROCEDURES say the rate is 0.1% and thing— same majority namely, holds that the certification that the error rate in county her is voting technology use of non-notice in twice high neighboring county. as as county Moreover, one but not another violates the technology improves Equal decline, “punch Protection Clause because dispari- error rates whatever optical among card and central-count scan tech- ties remain types different nologies greater result likelihood that equipment magnified. will be That one’s vote will not say, technology yields be counted on the same is to even a terms as the vote of someone in a negligible might notice error rate of 0.1% violate county.” Maj. Op. juris- at 871. Notwithstand- Protection Clause if other cautionary ing language employ its to the con- dictions within the state 876-77, 0.01%, trary, Maj. Op. majority see with a rate of which is one-tenth as virtually calling equality high. majority “greater absolute refers to a *45 voting counted, methods procedures across all likelihood” that a vote will not be electoral districts in a Ohio. but fails to articulate coherent constitu- point tional threshold —a at which a such A closer look at some relevant voting practices likelihood renders state story. key numbers tells much of the The unconstitutional. statistic, it, plaintiffs present as the is that Inter-county comparisons the residual-vote rate across the state was likewise fail to machines, punch-card clarify majority’s ruling. 2.29% for 0.94% for constitutional machines, electronic-voting According plaintiffs, disparity 1.04% for lever a such machines, precinct-count op- Cuya- and 1.15% for as the between Franklin and one words, tical In hoga scanners. other the error Counties—where the residual-vote in in punch-card rate districts is twice that of rate the latter is four times that of the and, scrutiny in precinct-count optical triggers counties with scan strict all former — likelihood, challenged county than that of equipment, and more twice dooms least restrictive however, constituted the course logic, that practice. Under meeting goal? its optical scan means and central-count punch cards only voting mecha are not the equipment para- above majority reads the The Protec might violate nisms that for not articulat- my faulting it graphs as which used a County, Lucas tion Clause. formula for mathematical ing precise “a (Automatic Ma Voting lever-style AVM voting technology determining when chine), rate of 0.4% a residual vote had Maj. it is not.” and when constitutional Stew election. See presidential the 2000 to a “coher- my But reference Op. at 876. Blackwell, 791, 826 F.Supp.2d art v. does not re- threshold” ent constitutional 2004). election, (S.D.Ohio In that same error rate of quire a concrete numerical voting and County used electronic Ross Rather, I have criti- y%. id. x% or See times rate of 1.2%—three had a residual majority failing provide for cized the County. Do these Lucas See id. that of the nu- determining when framework that, by a voter in a suit numbers dictate that are unavoidable merical differences County, county’s decision to from Ross constitutionally setting become election electronic-voting machines should be use responding aspect to this problematic. strict-scrutiny standard? under a reviewed dissent, however, majority does my all, voting use of the After the continued that its conclusion no more than reaffirm subjects “greater to a machines that voter of non-notice tech- the certification and use in Lucas counterpart than her likelihood” unconstitutional. in this case is nology vote will be excluded as County that her why these majority explain does not The improperly cast. voting technology particular differences strict-scrutiny standard exacerbates failing exposes unconstitutional —a majority’s inex- posed hazards something other than the approach as its Any change approach. act incremental analytical” urges one that it “reasoned disparity voter- potential that leads to employ “when confronted with courts susceptible legal error rates becomes Id. The questions.” difficult constitutional challenges in which the state must show facing the “difficult constitution- next court regulation is practice its chosen questions” al inherent a statistics-based state “necessary promote compelling equal protection challenge to state Ohio, Mixon v. 193 F.3d interest.” that, only will therefore know practices (6th Cir.1999); Craigmiles see also numbers, use these and these Ohio’s facts (6th Cir.2002) Giles, F.3d violated the of varied methods challenged regula- that a state (explaining Clause, not know Equal Protection but will if scrutiny only strict tion survives why. compelling purpose state “serve[s] Moreover, I am not the one who has narrowly achieving tailored to [is] number-crunching a dominant factor made guarantee But there is no purpose”). analysis. equal protection satisfy governments local would be able did so when plaintiffs themselves making standard when stringent *46 premise is brought a case whose central decisions, replac- such as most mundane that differences voter-error statistical ing electronic-voting equip- one brand rate) a viola- rates suffice to show constitutional (with, say, a ment 0.2% residual-vote squarely numbers are tion. Because these a 0.4% happens another that to have issue, provided hypo- I have the above justifica- rate. kind of residual-vote What majori- suffice, highlight in order to gov- could the theticals tion would and how limiting principle a ty’s failure to articulate body prove that the chosen ernmental casting not an- a beyond its assurances that is same chance ballot that is “[fjuture and that nouncing general a rule later deemed not to have been properly words, sort will be evaluated with claims of this In other majori- marked. while the financial, factors in [legal, practical] ty presumes requiring that substantial Maj. atOp. mind.” equivalency in residual-vote rates across prompt governments districts will local to majority responded by compar- up” “ratchet equipment, notice those ing apples oranges, implying governments would also be free to turn the “margin narrow of decision” across all vot- ratchet down to cheaper non-notice tech- presidential ers recent elections infuses nology. in the pres- the residual-vote rates at issue signifi- ent with added constitutional case all-or-nothing approach This carries with Maj. Op. again cance. at 871 n. 18. But practical it substantial concerns. As Pro- majority explain does not how these observed, fessor Hasen when one district numbers state-by-state margin-of-victory adopts a voting designed new method all, affect, analy- if equal protection error, decrease percentage of voter assume, example, I for that the ma- sis. yet voters in imple- districts have
jority suggest does not mean to mented the new method would have a col- voting machines comparative error rates claim, majority’s theory, orable under the would than the 0.009% have be less that their rights constitutional have been margin-of-victory in presi- Florida’s 2000 Hasen, violated. See 29 Fla. St. U.L.Rev. pass dential election order to constitu- at 401-02. The risk of a lawsuit each time tional muster. improved technology emerges accordingly end, my colleagues attempt In the a perverse “freezing creates incentive for quantitative disclaim their reliance on dif- ... voting mechanics at the current level ferences, describing judicially imposed “[a] at 402. technology.” Id. evaluating voting formula for mathematical Maj. rights “purely arbitrary.” cases” as Beyond the concern that the threat formula, however, Op. at 876. a Such innovation, lawsuits will halt the all-or- arbitrary than strikes me as no more nothing approach increases the risk that majority’s specific that the declaration dif- technological setbacks could invalidate the voting ferential error rates across dis- electoral results on a statewide basis. As- present tricts case violates the sume, example, that one or more coun- Equal Protection Clause. experiment ties in want to with Inter- Ohio voting net such a mechanism because majority
I also fails to believe might serve to decrease the error rate. If grasp “equality” one-way is not a permitted to trail-blazing counties are If street. what own, implement system on their new requires is that counties across Clause that call security logistical problems yield utilize mechanisms that Ohio question validity into of election results rate, substantially similar residual-vote counties, only leaving would affect those pre- then is punch-card the use ballots intact results from the rest of the every coun- sumably permissible long so hand, every county if state. On the other ty punch uses cards. That simultaneously relatively high percent- required adopt still method leads to system, widespread technical age imperfect of discarded votes statewide should wipe failure could out the entire state’s equal protection make no difference to the equality, while analysis, every face the election results. Instant since voter would *47 894 Weber, omitted); marks accord quotation for these theory, not account
fine in
does
F.3d at 1106.
system.
347
realities' of the electoral
foun-
In
of the uncertain doctrinal
light
court, I
believe
Like the district
problems
practical
and the
dations of
proffered
have
government defendants
I believe
majority’s approach,
posed by the
to sur-
reasons for their actions
sufficient
course is to review
proper
rational-basis
highly
deferential
vive
county
prac-
election
challenged state and
Beach
See FCC v.
standard
review.
standard.
the rational-basis
tices under
307, 313,
Communications, Inc., 508 U.S.
this course
followed
The Ninth Circuit
(1993)
2096,
Furthermore,
Again confusing
I
the refusal
to count an
for the reasons
above,
I
I
briefly in Part
cannot
improperly
mentioned
marked ballot with a state’s
classify
majority’s attempt
accept the
ascribing greater value to the votes of
covered
plaintiffs’ claims as
people living in one area rather than an-
precedents
on voter-
older
other,
majority
asserts
voters in
weight-
and the
qualification requirements
unequal
non-notice districts
“have an
majority
cites
ing of votes.
counted,
being
chance of their vote
not as
Harper,
383 U.S. at
Court’s decision
any
a result of
part
action on the
of the
1079,
insisting
86 S.Ct.
that “[t]he voter, but because of the different technol-
provided
to a voter
technology
Maj.
ogy
Op.
agree
utilized.”
at 870.
I
State,
wealth, has no rela-
like that voter’s
court, however,
with the district
voting qualifications
tion to
or the value
improper marking of a ballot
primarily
is
Maj. Op.
(emphasis
that vote.”
at 870
actions,
due to the voter’s own
however
added). This statement conflates two dif-
may
unintentional those actions
have been.
inquiries. Harper and other cases
ferent
Stewart,
(“[T]he
F.Supp.2d
See
at 803
that a state can determine voter
recognize
every opportunity
voter has
to check the
discrimina-
qualifications absent invidious
punch card ballot before submitting it to
Blumstein,
See,
e.g.,
tion.
Dunn v.
polls
the election official at the
and to be
330, 336, 92 S.Ct.
Reynolds also does not control the out-
(“Violations
of the
present
come of the
case.- The use of non-
deserving
protection
Clause are no less
technology
assuming
notice
—even
accomplished
because
with a mod-
appreciably
that such
leads to
preju-
ern machine than with outdated
of residual
not the
higher rates
votes—is
dices.”).
pros-
unpleasant
However
“[weighting
same as
the votes of citizens
part
Maj.
pect,
human error remains
differently.”
Op.
(quoting
1362).
no constitutional
Reynolds,
process,
democratic
*49
(6th Cir.2004)
Blackwell,
F.3d 565
v.
change
that fact. See
going
rule is
(2d
Blackwell,
curiam);
Power,
v.
(per
Cir.
White
v.
436 F.2d
Powell
(N.D.Ohio 2006);
1970)
Equal
Bay
Pro
(holding
F.Supp.2d
that neither the
Land,
of the
Party
and Due Process Clauses
County
tection
Democratic
I,
(E.D.Mich.2004).
§ 2
Amendment nor Article
Fourteenth
These
F.Supp.2d 404
“guarantee against er
of the Constitution
of obli-
generally seek enforcement
suits
election”).
of an
rors
the administration
recently imposed by Congress on
gations
potential
have more
to reduce
does
What
accept
choose to
federal
those states that
human error on election re
the effect of
administration. The
funds for election
change of the
sults is incremental
kind
suit,
contrast,
sig-
eschews the
present
Help
Amer
Congress
that
enacted
changes
by
mandated
nificant but balanced
Act
ica Vote
of 2002.
HAVA, and instead seeks a broad constitu-
But
HAVA is coex-
tional rule.
because
IV. THE HELP AMERICA
majority’s
with the
constitutional
tensive
(HAVA)
VOTE ACT
require
partici-
in so far as both
rule
majority’s
If
hold-
the end result of
implement
states like Ohio
some
pating
all
counties
ing
requirement
is a
Ohio
system,
of a notice
that constitutional
form
technology, then
adopt some form of notice
unnecessary.
compliance
Ohio’s
rule
my colleagues to the
Congress has beaten
give
with HAVA will
substan-
impose
punch. Key provisions
HAVA
tially all the relief that
claim seek.
on
notice-technology requirements
detailed
majority’s
me about the
What concerns
receiving federal funds for election
states
decision, therefore,
is not the effect that
administration,
em-
whether those states
equal protection holding will have on
lever,
DRE
ploy
optical-scan,
practices
upcoming
in Ohio in the
election
15481(a)(1)(A)
§
systems. See
U.S.C.
Rather, I am
November elections.
trou-
(2005).
short, however, of
stops
HAVA
aspects of the decision.
bled
two other
punch-card
banning
paper
the use of
majority
has inscribed
The first is
ballots,
such
explicitly permitting
ballots
preferred principles of federal election
its
state
long
be used so
as the
establishes
Constitution, thereby taking
law into the
program
explain
voter education
gov-
critical decisions out of the hands of
error,
in-
possibility
provides
of voter
officials more familiar with the
ernment
to correct those errors
structions
how
problems
possible
realities of the
and the
prior
casting
ballot.
Id.
This course of action should be
solutions.
15481(c)(2)
15481(a)(1)(B);
§
§
also id.
see
especially disfavored at a time when the
(preserving
power
paper
a state’s
to use
process
through
democratic
HAVA and
elections).
Punch-card
—
ballots
federal
engendered
the discussions and debates
voting systems thus survive HAVA even
legislation
responded
na-
though,
recognized,
court
as the district
—has
for
plan
tional
still allows
variations
pro-
Act
primary “purpose of the
was
among states and localities.
replace punch
vide federal funds to
card
Stewart,
voting systems.”
F.Supp.2d
My second concern stems from the un-
n. 1.
at 792
scope
majority’s equal pro-
of the
certain
I
in Part
holding,
explored
tection
which
expect,
one would
HAVA has become
As
requires
III
that states
above. HAVA
litigation, spawn-
point
a focal
election
system,
of a notice
re-
employ
type
some
ing a series of lawsuits
this court and
See,
voting equipment used.
gardless
the circuit.
the district courts within
But,
demonstrated,
majori-
I have
e.g., Sandusky County
Party
Democratic
premature
notice
conclusion strikes me as both
might render even some
ty’s holding
majority’s
if other notice
inconsistent with
deci-
unconstitutional
systems
substantially
found to have a
of fact.
systems
findings
sion to remand for further
say,
That is to
vote-rate.
lower residual
in
disagree
majority’s
I also
with the
interpretation of the
majority’s novel
court on remand.
structions to the district
sweeps far more
Protection Clause
*50
majority purports
The
aid” the dis
“[t]o
HAVA, and threatens to
broadly than does
analysis by citing
trict court’s
to Johnson
ability
gov-
of state and local
eliminate the
997, 1019,
DeGrandy, 512
114 S.Ct.
v.
U.S.
experiment
procedures
ernments
(1994),
2647,
was opportunity court will have an district challenged here. See Stew- practices are supplement the factual record remand to art, findings F.Supp.2d at 820. These claim Voting Rights Act and to address fully consistent with the district court’s anew, analyzing this point fully I no see political process in the defen- view that the interlocu- essentially claim on what “equally open partic- dant counties was Indeed, Ninth as the en banc tory basis. See by” African-American voters. ipation circumstances found under similar Circuit 1973(b). majority § never- 42 U.S.C. II, Voting application Shelley plaintiffs’ to remand the theless decides like those made allegations Act to Rights additional findings claim for further close, fact-sensi- presents determinations, plaintiffs that “the and holds legal 344 F.3d 918-919. questions. tive See claim under the properly stated a if explore questions those I will therefore Maj. Op. at This latter Act ....” claim under the plaintiffs’ and when the CHURCHWELL, Glenda
Voting Rights Act returns to this court. Plaintiff-Appellant, v. VI. CONCLUSION MARINE, INC., Mar- BLUEGRASS reading of expansive Bush Gore Co., Inc., quette Transportation panel the Ninth Circuit lasted less then Hendrick, Marie Defen- Motor Vessel banc, days being vacated en ten before dants-Appellees. today’s only one leaving decision as the No. 05-5185. appeals to invali- from a federal court practices date state-election on the basis of Appeals, United States Court of equal protection holding. Bush v. Gore’s *51 Sixth Circuit. Because I believe that Argued and Submitted: March 2006. precedents outside of Bush v. Gore Court’s significant leeway in the permit states April Decided and Filed: elections, administration of that the Con- require govern- stitution local does employ voting technology
ments to every statistically
assures voter a identical turning properly
chance of marked
ballot, already and that HAVA mandates
many majority changes I requirements,
elevated constitutional summary affirm grant judg-
would
ment in favor of the defendants re-
gard to the claim under the Protec-
tion respect Clause. With to the claim Act, Voting Rights
under the I am not
convinced that the district court erred ei- deny-
ther its ultimate conclusion or in
ing plaintiffs’ request certify class.
I respectfully therefore from dissent
majority’s contrary conclusions.