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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Friday, April 21
Sixth Circuit Holds Ohio Voting Systems Unconstitutional
The Sixth Circuit today ruled on a challenge to the State of Ohio's use of punch-card and central-count optical scan voting systems, holding that the use of both systems violates the Equal Protection Clause of the U.S. Constitution. The decision in Stewart v. Blackwell reverses the district court's contrary holding, which had rejected this claim after a bench trial. The Sixth Circuit also vacated and remanded on plaintiffs' claim that the challenged voting systems disproportionately deny the votes of African Americans, in violation of Section 2 of the Voting Rights Act. The opinion may be found here. (Disclosure: I'm co-counsel on the case with the ACLU and argued it before the Sixth Circuit.)

This is the first decision to hold that the use of punch-card or central-count optical scan voting equipment violates the Constitution. Two prior district court cases (Black v. McGuffage in Illinois and Common Cause v. Jones in California) had allowed lawsuits making similiar claims to proceed, but those cases were subsequently resolved without a final judgment on the merits of the issue. The California recall litigation (Southwest Voter Registration Education Project v. Shelley) also raised like claims. A three-judge panel of the Ninth Circuit originally ordered a preliminary injunction to be issued, but that order was vacated and the en banc court ended up affirming the district court's denial of a preliminary injunction.

The Sixth Circuit's opinion discusses these cases and, as one would expect, devotes considerable attention to the Supreme Court's opinion in Bush v. Gore. There's a lengthy exchange between Judge Boyce Martin's majority opinion and Judge Ronald Gilman's dissent on Bush v. Gore, which includes substantial discussion of Professor Rick Hasen's Florida State U. Law Review article on the subject.

The court's holding on Section 2 of Voting Rights Act issue, though likely to attract less notice, is also significant. This is one of a series of cases challenging election administration practices that result in the disproportionate denial of minority votes -- practices that I collectively refer to as "The New Vote Denial" in a forthcoming article. Other vote denying practices that have been subject to Section 2 challenges include voter identification and felon disenfranchisement laws. These cases, I argue, are qualitatively different from the more common form of Section 2 cases, vote dilution, in which the collective voting strength of racial minorities is weakened, even though they are allowed to vote and have their votes counted. The precise test applicable to practices that result in the disproportionate denial of minority votes has been less than perfectly clear in prior cases, but the Sixth Circuit decision is a step toward recognizing that such claims may proceed.

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