Section 4.1 - Voting Equipment

This topic is monitored by Moritz Law Professor Daniel Tokaji. For up-to-date news and commentary on voting technology, the Help America Vote Act, and other voting equality issues, see Professor Tokaji's Equal Vote Blog.

Voting Technology: From 2000 to 2004 . . . and Beyond

Since 2000, the United States has seen unprecedented attention devoted to the equipment used to cast and count our votes. Ohio and other states have taken a hard look at their voting machines and found them to be sorely lacking. Yet the transformation of voting equipment is not yet complete, and changes have come more slowly than some expected. This page explores the legal dimension of the ongoing developments in the area of voting technology from 2000 to the present. That includes the law governing the equipment used to cast and count votes, as well as the legal challenges that have been brought to the voting systems used in Ohio and elsewhere. It also discusses some of the legal issues surrounding voting technology that are still to be resolved.

Voting Systems Used in 2000

The natural starting point for any discussion of voting technology is Florida's 2000 election and the Supreme Court' s opinion in Bush v. Gore that effectively ended that election. Like many other states, the State of Florida used a mix of different voting technologies. Among the systems used there and elsewhere were punch cards, optical scan, and lever machines.

The punch card system used in Florida, Ohio, and many other states relies on a ballot card with hundreds of pre-scored perforations (or "chad") on it. The voter makes his or her choice by placing it in a voting device with the candidates' names listed on it, and punching the chad with a small stylus. If done correctly, the chad is completely detached from the ballot card, allowing the card to be read by a mechanical reader. However, as the Supreme Court remarked in Bush v. Gore, "punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter." 1  This can lead to votes not being counted as intended.

The optical scan system, also used in Florida, Ohio, and many other states, functions in a way similar to standardized tests such as the SAT. The voter makes his choice by marking a paper ballot, generally by filling in an oval or completing an arrow. The marks cast on the ballot are then read by a mechanical reader, in a manner similar to punch cards.

Though less common than punch card and optical scan voting, old-fashioned lever machines are still used by some voters. These machines were developed in the late 19th century. Voters make their choices by turning levers on the voting machines.

Most citizens in Florida's 2000 election cast their votes using a punch card ballot. And throughout the country, the punch card was the most commonly used voting technology used in 2000. Approximately 31% of registered voters in the United States used a punch card system in 2000, while 29% used optical scans, and 17% lever machines.

In Ohio, the punch card system was even more predominant in 2000. Of Ohio's 88 counties, 70 used punch card voting. 2  Overall, almost three-quarters of Ohio's citizens cast their votes by punch card in 2000.

After the punch card, the next most commonly used type of voting system in Ohio's 2000 election was the electronic voting system, commonly known as "Direct Record Electronic" or DRE voting. As the name suggests, these machines are electronic and typically require the voter to push a button or touch a screen in order to cast votes. They were used by approximately 11% of Ohio voters and 13% of voters nationwide in 2000.

Modern electronic "touchscreen" voting systems can notify voters of their choices at the conclusion of the voting process and give them the opportunity to correct any errors, a feature known as "second chance" voting. They also have an audio capacity that allows people with visual impairments to vote independently, and can be outfitted with devices allowing people with manual dexterity limitations to use them. In addition, most modern touchscreen devices have the capacity to provide ballots in multiple languages, so that they may readily be used by non-English proficient voters.

Voting System Accuracy

The four types of voting systems most commonly used in Ohio and elsewhere do not record votes with equal levels of accuracy. As the Bush court noted, the punch card machine can lead to inaccuracy when the chad is not completely punched or when more than one chad for a particular race is punched. The term "undervote" is used when no vote is recorded in a race, while the term "overvote" is used where more than one choice is recorded, thereby leading to invalidation of the ballot. "Residual votes" are the sum of overvotes and undervotes.

Any type of voting system can result in an "undervote" if a choice is not registered for a particular race. In fact, some undervotes are undoubtedly intentional, reflecting the voter's deliberate choice not to cast a vote in that race. Both punch card and optical scan systems are susceptible to overvotes as well. On the other hand, lever and electronic voting systems do not allow overvotes.

In the 2000 election, the four most common types of voting systems resulted in the following residual vote rates in Ohio and the United States:

Type of System	U.S. Residual Vote Rate 3	Ohio Residual Vote Rate 4
Punch cards	3.0	2.3
Optical scans	1.2	1.7
Lever	1.7	0.5
Electronic	1.6	0.7

While residual vote rates are admittedly an imperfect measure of voting system accuracy, since they include some intentional non-votes, they are useful in detecting systemic differences across voting technologies and are generally considered the best means available for comparing different systems. As this chart shows, voters using punch card machines had higher residual vote rates than those using other types of systems.

Developments Since 2000: Legislation and Litigation

The 2000 elections prompted a flurry of attention to the equipment that Americans use to cast their votes. Numerous studies were performed and, while not all reached the same conclusion, most concluded that improvements in voting technology were an essential component of election reform.

After considerable debate, Congress in 2002 enacted and the President signed the Help America Vote Act, commonly known as "HAVA."5  Although HAVA does not require the elimination of punch cards or any other type of equipment, it did authorize $650 million for the replacement of punch card and lever machines. Altogether, HAVA authorizes a total of $3.65 billion for election system improvements over a four-year period. It creates a new federal agency, the Election Assistance Commission ("EAC"), whose responsibilities including making payments to states and providing for the study of election systems.

Although it does not prohibit the use of any voting technology, HAVA does include some provisions designed to improve the accuracy and accessibility of our election system. It requires that voters be given the opportunity to verify their votes before they are cast. 6  In addition, HAVA requires that voting systems produce a "permanent paper record with a manual audit capacity." 7  HAVA also requires that accessible technology be provided to people with disabilities. Specifically, the law mandates that at least one DRE machine or "other voting system equipped for persons with disabilities at each polling place." 8

While HAVA does not require the replacement of any voting equipment, voters and citizen groups have filed lawsuits in several states to require the replacement of punch card voting technology. The American Civil Liberties Union has led the fight against punch cards, filing lawsuits in Florida, Georgia, Illinois, California, and Ohio. These lawsuits alleged that the use of punch card voting systems violates the Equal Protection Clause of the United States Constitution. More specifically, they alleged that the use of punch cards violates the principle that the state avoid discrimination against voters based on their place of residence. Where the state allows the use of different voting systems with substantially different accuracy rates, these lawsuits allege, the principle of "equal weight" to each vote and "equal dignity" to each voter is violated. 9

In addition, the lawsuits challenging punch cards alleged that the use of this equipment discriminates against voters of color, in violation of the Voting Rights Act of 1965. Section 2 of this law prohibits voting practices that "result in" the denial or abridgment of voting rights on account of race. 10  The ACLU's lawsuits allege that punch cards result in the disproportionate denial of minority votes, and there is evidence to support the conclusion that punch cards and at least some optical scan systems have a disproportionate impact on African Americans. 11

Federal courts in both California and Illinois allowed the ACLU's punch card cases to proceed, finding that they stated claims under both the Fourteenth Amendment and Voting Rights Act. 12  These two cases, along with the cases brought in Florida and Georgia, have since been resolved. The only case still pending on the subject is the Ohio litigation, Stewart v. Blackwell.

The 2004 Election

Notwithstanding the legislative and litigation developments since 2000, many voters will continue to use punch cards in the 2004 elections. Approximately 19% of voters nationwide will use punch cards this election cycle.  In Ohio, over 70% of voters will use the same type of punch card machine used in Florida's 2000 election.

In Ohio, an even greater number of people within the state's 88 counties are likely to continue voting by punch card. According to Ohio Secretary of State Ken Blackwell, "Sixty-four counties will use [punch card] equipment that is unfit, unreliable, and unfair to the disabled." 13

Some states and counties have taken action to replace their punch card voting systems with electronic voting systems. However, the movement toward electronic voting has been slowed by delays in providing funding and by increasing controversy over its security. Some computer scientists have asserted that electronic voting is inherently susceptible to manipulation. In Ohio and other states, they have insisted that a contemporaneous paper replica of the electronic ballot, or "voter verified paper audit trail," is the only means to ensure the integrity of DRE voting. Others have resisted the call to require a contemporaneous paper replica, arguing that other procedures can be implemented to promote reliable DRE voting.

In Ohio, critics of current electronic voting systems scored a significant victory, by securing the enactment of state legislation to require that electronic voting machines produce a contemporaneous paper replica by 2006. Electronic voting critics have met with less success in the courts. The one published judicial decision to consider a challenge to paperless voting machines, Weber v. Shelley, rejected the claim that voting rights are violated by touchscreen machines that lack a paper audit trail. 14  In that decision, the U.S. Court of Appeals for the Ninth Circuit concluded that the case raised "at most a hypothetical concern about the ability to audit and verify election results." 15

On the other side of the electronic voting debate, citizens with disabilities have argued that immediate implementation of DRE voting systems is vital in order to protect their right to cast a secret and independent ballot. A federal court in Florida agreed, concluding that the Americans with Disabilities Act of 1990 required election officials to provide accessible voting equipment to people with manual and visual limitations. 16  On the other hand, a California court rejected disabled citizens' motion for an emergency order, on the ground that they had no right to electronic voting equipment that would allow them to vote independently.

Conclusion

As we approach the four-year anniversary of the historic 2000 election, the infrastructure of our democracy remains in a state of transition. In Ohio and other states, many citizens will continue to vote on the same "hanging chad" punch card machines that caused so many problems in Florida. Other citizens will vote on electronic voting systems, despite the intense controversy surrounding the security of this technology. The most prevalent type of voting system used in 2004 will be optical scan systems which, though more reliable than punch cards, do not allow independent voting for people with disabilities. And while some of the lawsuits challenging voting equipment have been resolved, unanswered questions remain about whether the voting systems used in the United States comply with the Constitution and federal civil rights statutes.

Click here to return to Voting Technology front page.

Notes

1. 531 U.S. 98, 103-04 (2000).

2. Ohio Secretary of State, Preliminary HAVA Plan (2003).

3. R. Michael Alvarez, et al., A Counting Ballots and the 2000 Election: What Went Wrong?, in Rethinking the Vote: The Politics and Prospects of American Electoral Reform 34, 40 (2004). The punch card statistics are for those using A Votomatic-style punch cards, the functioning of which is described above. They do not include A Datavote-style machines which do not have "chad" and had a lower residual vote rate of 1.0% in the 2000 election.

4. Based on county-by-county data provided by Ohio Secretary of State's office.

5. Public Law 107-252.

6. Section 301(a)(1)(A) For states using punch cards or other paper-based systems, this requirement may be met by establishing a voter education program. Section 301(a)(1)(B).

7. Section 301(a)(2)(B).

8. Section 301(a)(3)(B).

9. See Bush v. Gore, 531 U.S. at 101

10. 42 U.S.C. § 1973(a).

11. Michael Tomz & Robert P. Van Houweling, A How Does Voting Equipment Affect the Racial Gap in Voided Ballots?, 47 American Journal of Political Science 46 (2003).

12. Black v. McGuffage , 209 F. Supp. 2d 889 (N.D. Ill. 2002); Common Cause v. Jones , 213 F. Supp. 2d 1110 (C.D. Cal. 2002).

13. Fritz Wenzel, A Blackwell: Ohio Will Be Watched in November, Toledo Blade , May 27, 2004.

14. Weber v. Shelley , 347 F.3d 1101 (9th Cir. 2003).

15. Id. at 1103.

16. American Association of People with Disabilities v. Hood , 2004 WL 626687 (M.D. Fla. 2004).