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
Thursday, December 28
Enjoying the Holidays
I'm taking a blogging break and will be back the week of January 8.
Monday, December 18
Guest-Blogging on Election Law
I'll be guest-blogging on Rick Hasen's Election Law Blog this week. As I've done before, I'll cross-post any posts containing substantive analysis or commentary here.
Sunday, December 10
The Ohio 15th Recount
The end-of-the semester crunch has kept me too busy to blog in the past week, but there have been a lot of developments. One of them has to do with the election for Ohio's 15th Congressional District, involving Democrat Mary Jo Kilroy and incumbent Republican Deborah Pryce. According to this report from the Columbus Dispatch, Pryce retained her lead of 1,055 after a recount of over 15,000 votes, in whicn no discrepancies were found. Final numbers are expected early this coming week, but it's now pretty clear that Rep. Pryce is the winner.

One of the reasons this contest is interesting is because it involves a recount with contemporaneous paper records generated by an electronic voting machine.The recount of votes in Ohio's 15th district was required under state law, because the margin of victory was less than 0.5%. As I've discussed here, Ohio has a law stating that the so-called "voter verified paper audit trail" (or VVPAT) is to be the "official ballot" in the event of a recount. Franklin County, in which most of the voters in Ohio's 15th live, uses an ES&S electronic voting system with a paper tape that prints the voters choices in "real time," as described here.

Under procedures set by the Secretary of State's office, described here by my colleague Steve Huefner,the recount process involves hand-recounting 3% of VVPAT records and comparing them to the summary of results. Franklin County election officials actually recounted about 10%, a larger sample than state law requires, in a process described here. There were reportedly about a dozen cases in which votes weren't readable on the paper tapes used for recounts for reasons such as paper jams. This is much better than occurred after Cuyahoga County's primary election with a Diebold VVPAT voting system, in which almost 10% of the paper ballots were compromised.

One of the things that allowed the recount to proceed relatively smoothly in Franklin County is that both sides were able to agree on ground rules, including those governing unreadable tapes. This also avoided legal machinations over Ohio's recount standards, the possibility of which I noted here and my colleague Ned Foley discussed here. The Dispatch reports that Kilroy's campaign has filed a lawsuit seeking the names of 2,600 voters who cast provisional ballots that weren't counted. But even if a large number of these votes wound up being counted, it's extremely unlikely that they could swing the race given Pryce's 1,055 vote lead.

Though I'm a longtime opponent of VVPAT requirements, I have to acknowledge that the recount in Franklin County appears to have gone pretty smoothly. Franklin County election officials deserve credit for this, as do the two campaigns for reaching agreement on ground rules. Whether the VVPAT will serve as an effective check on fraud and mistakes -- such as those which occurred in Sarasota County, Florida -- is another question. Among the unanswered questions are whether voters actually check the paper printouts and whether it's practical to routinely recount a sufficient number of printouts so as to ensure an adequate level of confidence in the result. But those are questions for another day.
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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