Election Law @ Moritz

Election Law Litigation

Stewart v. Blackwell

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Detailed Summary

Veronica Norman
Moritz College of Law Class of 2008
Part of a series summarizing and analyzing election law developments
edited by Terri Enns, Senior Fellow
(Updated 6/22/06)
[View Case Documents]

Please note: Daniel P. Tokaji, his individual capacity and not representing Election Law @ Moritz, is participating in this case as an attorney for plaintiffs.

For the past number of elections, Ohio voters have used two categories of voting equipment, as certified by the Ohio Secretary of State: notice equipment and non-notice equipment. [1] Notice equipment, such as Digital Recording Electronic (DRE) equipment, prevents overvotes (where the voter selects more than one candidate per office) and notifies the voter of undervotes (where the voter does not make a selection for one or more offices). [2] Non-notice equipment, such as punch card and central-count optical scan equipment, does not provide notice of and the opportunity to correct residual votes (overvotes and undervotes). [3] In the 2000 general election, approximately 72.5% of Ohio voters used non-notice voting equipment and 27.5% used notice equipment. [4]

In 2002, a group of voters residing in four Ohio counties that used punch-card systems brought suit claiming that, compared to voters using notice equipment, voters using punch-card equipment are more likely not to have their votes counted. [5] The plaintiffs also presented evidence that punch-card equipment interacts with socioeconomic conditions and produces a higher residual vote rate for African-American voters than for white voters. [6] Ohio's own report on the Help America Vote Act further buttressed the plaintiffs' argument because it concluded that there existed overwhelming evidence that "thousands of Ohio voters have been disenfranchised by antiquated voting equipment." [7]

Plaintiffs alleged that that the use of unreliable, deficient voting equipment (including the punch card ballot) in some Ohio counties but not others violates the Equal Protection Clause of the Fourteenth Amendment, that the use of unreliable equipment violated their due process right to have their votes counted accurately, and that the use of punch card voting systems has a disparate impact on African-American voters in violation of the Voting Rights Act of 1965. [8]Applying strict scrutiny, the Sixth Circuit Court of Appeals declared that Ohio 's practices indeed violated the Equal Protection Clause, but further factual determinations must be made on remand in order to determine whether the practices violated the Voting Rights Act. Because the court found a violation of Equal Protection, it did not address plaintiffs' due process claim.

The Equal Protection Claim:

The court reaffirmed that voting is a fundamental right because "the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights...." [9] The Constitution prohibits outright denials of the right to vote. [10] In addition, the Supreme Court has consistently held that dilution of the weight of a citizen's vote is also proscribed because it denies suffrage just as effectively as by wholly prohibiting the free exercise of the franchise. [11] The Equal Protection Clause of the Fourteenth Amendment espouses the notion that "every voter is equal to every other voter in his State." [12] Thus, an electoral system that dilutes the weight of votes based on arbitrary factors, such as where groups of voters live, their income, or their race, is prohibited. [13] Consequently, the court reaffirmed the "right to vote," [14] and that it includes the right to place one's vote and to have it counted on equal terms with other citizens. [15]

Compared to voters who used reliable electronic voting equipment, voters who used the punch card systems were four times more likely not to have their vote counted. [16] Based on this evidence, the court found that punch card equipment is deficient in comparison to notice equipment. [17] The votes of residents residing in counties which used punch card systems were effectively given less weight than the votes of residents residing in counties that used reliable notice equipment. By maintaining a system in which votes are counted more accurately in some counties than in others, Ohioans vote under two separate standards based on voters' areas of residence. [18] As a result of the different technologies used across the state (as opposed to a result of the voters' independent actions), voters have an unequal chance of having their vote counted. [19]

The court further held that the State had no legitimate justification for using punch card systems over more reliable notice equipment. In light of the Secretary of State's report concluding that the notice technology can be securely implemented, the court determined that neither the State's concerns for the cost of implementing notice equipment across the state nor its alleged concern with voter fraud (there were no actual incidents of voter fraud in Ohio with the use of electronic voting machines) are compelling enough for the State to continue to use non-notice equipment in some counties. [20] Consequently, the use of the deficient non-notice technology in some counties but not in others was found to constitute a violation of the Equal Protection Clause. [21]

The Voting Rights Act Claim:

Section 2 of the Voting Rights Act (VRA) prohibits the use of any practice or procedure that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." [22] Unlike discriminatory actions challenged under the Constitution, which require proof of discriminatory intent and discriminatory effect, Section 2 requires only that a plaintiff prove that a challenged action has a discriminatory effect on a protected class. [23] Based on the totality of the circumstances, a plaintiff must show that the political processes leading to nominations or elections are not equally open to participation by members of a class protected by Section 2. [24] This can be accomplished by showing that the members of a protected class have a lesser opportunity than other members of the electorate to elect representatives of their choice. [25]

The court rejected the defendant's argument that because African Americans had equal physical access to the polls, they were not denied the right to vote and thus the Voting Rights Act was not violated. [26] Because the right to vote includes "all action necessary to make a vote effective," including "casting a ballot and having such ballot counted properly," the court found that the district court had applied an erroneous legal standard. [27] To prove a Section 2 violation, plaintiffs must establish that the contested electoral practice caused the prohibited discriminatory result: the use of non-notice voting machines created an unequal opportunity for African-Americans to participate in the political process in comparison to the general electorate. [28] Since claims under the Voting Rights Act require an "intensely local appraisal of the design and impact" of the challenged electoral practice, the court vacated the district court's decision (the district court held that there was no violation of the Voting Rights Act) and remanded the case for a more careful consideration of statistical evidence offered previously to the district court. [29]

Notes

[1] Stewart v. Blackwell, 444 F.3d 843, 847 n.1 (2006). Plaintiffs filed their complaint in October 11, 2002. Id. at 846. The Help America Vote Act of 2002 (HAVA) became law on October 29, 2002. HAVA requires states which choose to receive federal funds under the Act to discontinue the use of punch card systems by 2006. Although Ohio had begun the process of replacing punch card and central count optical machines, it had not been completed by the November 2005 elections.

[2] Stewart, 444 F.3d at 846-47.

[3] Id. at 847.

[4] Id.

[5] Id. at 848. Plaintiffs presented statistical evidence from Dr. Martha Kropf.

[6] Id. at 851. Plaintiffs presented statistical evidence from Dr. Richard Engstrom.

[7] Id. at 850 (quoting the State's report on the Help America Vote Act).

[8]Id. at 846.

[9] Id. at 856 (quoting Reynolds v. Sims, 377 U.S. 533, 562 (1964)).

[10] Id. at 856 (citing the Fifteenth Amendment; Guinn v. United States, 238 U.S. 347, 362 (1915); and Lane v. Wilson, 307 U.S. 268, 274-75 (1939)).

[11] Id. at 857 (citing Reynolds, 377 U.S. at 555).

[12] Id. (quoting Gray v. Sanders, 372 U.S. 368, 379-80 (1963)).

[13] Id.

[14] Id. at 856.

[15] Id. at 868. Although in Bush v. Gore, 531 U.S. 98 (2000), the Supreme Court held that the Equal Protection Clause protects the right to have one's vote counted equally during a recount, this court concluded that the logical extension of Bush's holding is that the Equal Protection Clause also covers the right to have one's vote counted properly in the first instance. Id. at 870 n.17.

[16] Id. at 848. A study by Dr. Martha Knopf showed that residual vote rates due to intentional undervoting was.23% to.75%, while the statewide residual vote rate was 2.29% for punch card systems and 2.14% for central-count optical scan systems. In the 2000 presidential election, the Ohio counties that experienced the highest percentage of residual votes were those in which voters used punch card systems, while the counties that experienced the lowest percentage of residual votes were those in which voters used other technology. Furthermore, Dr. Knopf's findings were mirrored by a similar study conducted by defendant's expert, Dr. John Lott, who concluded that there was an overall statewide residual rate of 2.4% for punch card systems. Id. at 849-850.

[17] Id. at 869.

[18] Id. at 870.

[19] Id.

[20] Id. at 873.

[21] Id. at 877.

[22] Id. at 864 (quoting 42 U.S.C. § 1973(a)).

[23] Id. at 877.

[24] Id.

[25] Id.

[26] Id. at 851.

[27] Id. 878 (quoting Moore v. Detroit School Reform Bd., 293 F.3d 352, 363 (6th Cir. 2002)).

[28] Id. (quoting Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 597, 597 (9th Cir. 1997)).

[29] Id. (quoting Thornburg v. Gingles, 478 U.S. 30, 78 (1986)).