Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Voting Machines Per Capita: a Bush v. Gore Issue?

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November 5, 2004

The front page of today's Columbus Dispatch reports on disparities in Ohio, and within Franklin County specifically, in the number of voters served by each voting machine. For example, Cuyahoga County (Cleveland) and Summit County (Akron) averaged 68 and 86 voters per machine, respectively. By contrast, Franklin County averaged 170 voters per machine, or over twice as many.

This disparity in machine-voter ratios contributed to the excessively long lines at some polling places in Ohio, compared to others. According to the Dispatch article, the longest lines in Summit County on Tuesday were about 90 minutes, whereas in Franklin County there were lines up to 5 hours long.

Within Franklin County, moreover, there were significant disparities in the number of voting machines per capita. Some precincts averaged 56 voters per machine (below the overall Cuyahoga County average), whereas other precincts averaged more than 200 voters per machine.

At 5 minutes per voter (a time limit established by Ohio law that on Tuesday was, according to anecdotal accounts, enforced in some precincts but not others), 200 voters would take 1000 minutes or 16 hours and 40 minutes – or over 3 hours longer than the polls were supposed to be open.

Interestingly, the Dispatch's data suggests that these disparities within Franklin County did not disproportionately burden predominantly inner-city precincts, as had been suggested anecdotally yesterday in a variety of reports. On the contrary, the precincts with the highest number of voters per machine in Franklin County tended to be in the outlying suburban or ex-urban portions of county. A very useful map illustrating this point accompanies today's Dispatch story.

An important question for the next election in Ohio, and perhaps elsewhere, is whether disparities in the number of voting machines per capita presents an Equal Protection problem under Bush v. Gore. The Court there observed that "[e]qual protection applies" not just to "the initial allocation of the franchise," but also to"the manner of its exercise." 531 U.S. at 104. This principle would seem easily to cover voting machine disparities that have the effect of imposing differential barriers to the voting booths for citizens in different parts of the state.