Dan Tokaji's Blog
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
Wednesday, June 21
Eleventh Circuit Upholds Touchscreen Voting
The Eleventh Circuit Court of Appeals issued this opinion today in Wexler v. Anderson. The plaintiffs in the case, including Rep. Robert Wexler (D-FL), challenged Florida's use of paperless touchscreen voting machines. The Eleventh Circuit rejected Wexler's claim that paperless touchscreens violate equal protection.

In my view, the Eleventh Circuit's analysis and conclusion are correct. The court aptly frames the "question of constitutional dimension" as follows: "Are voters in touchscreen counties less likely to cast an effective vote than voters in optical scan counties?" The answer to that question is Wexler was an emphatic "No." In fact, Rep. Wexler and his co-plaintiffs didn't even plead that touchscreen voters were "less likely to cast effective votes." Accordingly, the Eleventh Circuit declined to apply strict scrutiny -- properly in my view -- since plaintiffs failed to demonstrate a severe burden on the right to vote, but only a "reasonable, nondiscriminatory" election regulation.

Notably, the Eleventh Circuit distinguished the Sixth Circuit's opinion in Stewart v. Blackwell, discussed here and here. (Disclosure: I'm an attorney for the Stewart plaintiffs). The Sixth and Eleventh Circuits actually apply the same constitutional test, drawn from the equal protection cases from Reynolds v. Sims to Bush v. Gore. Where the two cases differ is in their facts. Unlike Wexler, the Stewart case did involve evidence that voters using a particular type of equipment (non-notice punch card and optical scan ballots) were less likely to cast effective notes. As the Eleventh Circuit notes, the Stewart plaintiffs had "evidence showing higher residual vote rates among voters using punch card equipment than among those using other types of equipment, including touchscreen voting machines." Strict constitutional scrutiny was therefore warranted in Stewart, but not in Wexler.

Right on target, if you ask me.

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