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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, December 1
Mootness in Stewart v. Blackwell
After the 2000 election, lawsuits were filed in at least five states challenging the use of punch card voting equipment, on the ground that its use violates rights protected by the Fourteenth Amendment and the Voting Rights Act. Stewart v. Blackwell is, to my knowledge, the last remaining of these cases. (Disclosure: I'm one of the attorneys for Plaintiffs in this case, and was an attorney for plaintiffs in two punch card cases in California.)

In April of this year, a three-judge panel of the Sixth Circuit issued an opinion in Stewart, holding that Ohio's use of non-notice punch card and optical scan systems violates the Equal Protection Clause. That opinion, described here, relied on Bush v. Gore, as well as the "one person, one vote" line of cases. The Court also reversed and remanded the district court's rejection of Plaintiffs' claim under Section 2 of the Voting Rights Act. In July, the full court granted rehearing en banc in the case, vacating the panel's opinion. The case was scheduled for argument on Wednesday, December 6, 2006.

Yesterday, Plaintiffs' attorneys submitted this letter to the Sixth Circuit clerk's office. The letter states, in pertinent part:

Plaintiffs-Appellants have reached the conclusion that this case is now moot. Although not clear from the evidence in the record, it appears from news reports from the just-completed election cycle that the non-notice voting equipment challenged in this case has now been replaced throughout the State of Ohio and that this equipment is not likely to be used again.

Should this Court agree that the case is moot, Plaintiffs-Appellants respectfully submit that the proper course is to vacate the district court's ruling and remand with directions to dismiss the case as moot.

If the Sixth Circuit agrees that the case is moot, it will be left to future courts to determine the applicability of the Equal Protection Clause to matters of election administration. While their have been a few opinions since 2000 on the subject, including ones from the Ninth Circuit and Eleventh Circuit, none addressed the issue with the same level of detail as the Sixth Circuit panel in Stewart. The same holds true of its opinion on the Section 2 vote denial claim, another area where there is a great need for clarification of the law.

The doctrinal legacy of Bush v. Gore remains up for grabs.

Update: The Sixth Circuit has now issued this order, cancelling oral argument and asking for a response from the Defendants within seven days on the proper disposition of the case.

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