11th Circuit's Voting Machine Case: A Fresh Application of Bush v. Gore
On June 20, 2006, the U.S. Court of Appeals for the 11th Circuit issued its decision in Wexler v. Anderson, a federal case dealing with constitutional issues arising out of Florida election law. In this case, the plaintiffs argued that Florida 's manual recount procedures in counties using touch screen voting machines violated the federal constitutional rights of equal protection and due process of the voters in those counties. The appellate court affirmed the decision of the district court to dismiss the plaintiff's claim.
Of the sixty-seven counties in Florida, fifteen use paperless touch screen voting machines while fifty-two use optical scan devices.  All counties use optical scan devices to record and tabulate both absentee and provisional votes.  Florida law mandates that a manual recount must be employed if a margin of victory on any vote is less than one-half of one percent.  Though the specifics of the recount procedures are complex, it is sufficient to say that the process is different depending on which voting system is employed by the county. Optical scan device recounts entail re-running the ballots through the scanners, while recounts of touch screen machines involve examining the counters on the tabulators to ensure that the total number reported there equals the total number of returns.  If the results of these recount procedures then show that the margin of victory was within one-fourth of a percent, then another recount is done, this time by examining residual votes, which are comprised of all under-votes and over-votes. 
The manual recount process is even more varied depending upon which voting system is used in a county. In a recount of residual votes in optical scan counties, the goal is to look at each ballot that had such a residual vote, and attempt to discern the voter's intent.  This search sometimes makes a significant difference, if, in the case of an over-vote, the voter's choice was clearly marked, but the machine registered the tabulation of that ballot as an over-vote because of a stray mark on the ballot. Generally, this process is fairly straightforward in the counties using these optical scan devices. 
The process is different in counties using touch-screen devices. Because there is no "piece of paper" for each individual voter, the same type of review of ballots cannot be provided as can be done in those counties using optical scan devices.  The system that is used in these counties involves printing one official copy of the ballot image report from each touch screen voting machine (that has recorded under-votes), and then examining those reports to identify and highlight the under-votes, looking for an indication that the voter made a definite choice to under-vote.  The final purpose of the manual recount in these counties is to ensure that the number of under-votes recorded by the individual machines matches the total number of under-votes in the precinct. 
The plaintiffs brought this suit in federal court claiming that the use of touch screen voting systems that do not produce a paper record of votes and allegedly lack a manual recount procedure violates the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the Constitution.  The plaintiffs claim that the constitutional failure is that there is no meaningful review of under-votes in counties using touch screen machines as there is for those using optical scan devices, as there is no way to determine whether an individual voter made a definite choice to under-vote just by looking at the ballot image summaries. 
The court held that the fundamental constitutional question was: "Are voters in touchscreen counties less likely to cast an effective vote than voters in optical scan counties?"  In answering this question, the court decided not to employ a standard of strict scrutiny because the state election law imposes only reasonable, nondiscriminatory restrictions upon voters' rights.  The standard used by the court was to determine if the disparate treatment that does exist is justified by the State's "important regulatory interests."  The court found that the differences in recount procedures for each type of voting machine were necessary in light of the differences in the technologies, in the types of errors likely to occur when using the different voting systems, and other differences.  The court used this reasoning to rule that the current state of Florida election law, as questioned by the plaintiffs, was sufficiently justified by the States' regulatory interest to survive constitutional scrutiny, from both an equal protection and due process perspective. 
The court in Wexler claims to be relying, at least in part, on the Supreme Court's decision in Bush v. Gore.
 The court frames the constitutional question to be answered as
whether Florida 's manual recount procedures, which vary by county according to voting system, accord arbitrary and disparate treatment to Florida voters, thereby depriving voters of their constitutional rights to due process and equal protection. 
The court, in applying Bush, finds that the Florida electoral system does not violate the Equal Protection or Due Process Clauses of the Constitution.  In a case with similar facts, Stewart v. Blackwell , the Sixth Circuit also applied Bush v. Gore, yet came up with the opposite result.
The apparent disparity between these two cases, with regard to their application of Bush v. Gore, necessitates further review. Did the Eleventh Circuit simply interpret Supreme Court precedent differently than the Sixth Circuit, or were the cases factually different such that the Eleventh Circuits application can be reconciled with the Sixth's? In Stewart, the plaintiffs alleged that the use of punch card ballots and central-count optical scan systems deprived voters of rights, because voters in counties with less antiquated voting systems had a higher probability of casting a meaningful ballot.  In Wexler, the plaintiffs alleged that using different recount systems for counties using optical scan machines as from counties using touch-screens was in violation of the same constitutional privileges. Both cases deal with differences among voting systems in various counties within a state. Both cases deal with the changing nature of technology in voting systems. At least superficially, Wexler and Stewart are factually similar.
Though somewhat similar, the two courts found that the two cases are sufficiently different from each other to warrant a different result when applying the same precedent. In Stewart, the plaintiffs alleged that the disparity among voting systems was necessarily devaluing the votes of voters in some counties in Ohio while not devaluing the votes of others.  It is this specific claim that seems to set the two cases apart. A similar allegation was not made by the plaintiffs in Wexler, as the court specifically noted.  Instead, the plaintiffs in that case restricted their allegations to a claim that the disparities among voting systems fail to provide for the type of manual recounts contemplated by Florida law. 
The Supreme Court, in Bush v. Gore, held that the use of standardless manual recounts violated the Equal Protection Clause of the Constitution.  The Court stated that "the formulation of uniform rules to determine intent . is practicable and, . necessary."  The Court limited its decision to the facts therein, specifically a case where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.  Though that specific situation was not replicated in either of the two cases being compared here (Stewart and Wexler), both cases relied on the principles set forth in Bush as controlling.
The central principle set forth in Bush, not related directly to the role of a state court in mandating election rules, was that one person's vote could not be devalued due to election rules and procedures.  Because the plaintiffs in Stewart claimed that this principle had been violated, whereas the plaintiffs in Wexler did not, it seems reasonable to conclude that the two cases can be reconciled as appropriate applications of the principles set forth in Bush. 
 Wexler v. Anderson, 2006 WL 1685802, at *1 (11th Cir.( Fla. ))
 Id. *1.
 Id. at *1, referring to Fla. Stat. §102.141(6)(a)
 Id. at *1
 Id. at *1 (an under-vote occurs when the voter does not mark a choice [or enough choices] in a particular category, while an over-vote occurs when the voter marks too many choices. It is impossible to over-vote when using a touch screen voting machine, as the machine will not allow it.)
 Id. at *1 (the goal is to determine if there is a "clear indication on the ballot that the voter has made a definite choice").
 Id. at *1.
 Id. at *2.
 Id. at *2.
 Id. at *2.
 Id. at *4.
 Id. at *4.
 Id. at *4 (The court based its decision to use this question as the foundation for its opinion based primarily on the Supreme Court's ruling in Bush v. Gore, 531 U.S. 98, 104-105 (2000).)
 Id. *5.
 Id. at *6.
 Id. at *6.
 Id. at *6.
 Id. at *6
 Id. at *6.
 Id. at *6.
 Stewart v. Blackwell, 444 F.3d 843
 Id. at 846.
 Id. at 846.
 Wexler, 2006 WL at *5 (The court said that the plaintiffs avoided the question of constitutional dimension: "Are voters in touchscreen counties less likely to cast an effective vote.?".
 Id. at *5.
 Bush v. Gore, 531 U.S. 98, 103 (2000).
 Id. at 106.
 Id. at 109.
 Id. at 104.
 For further analysis regarding the applicability of Bush v. Gore, see Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 Fla. St. U.L.Rev. 377 (2001).