From Paul Lehto:

Re: Stewart v Blackwell, to-be-published 6th Circuit case that came down Friday April 21, 2006; opinion at

On Wednesday evening our time (Thursday New Zealand time) as you know the “Cramdown” essay was published on the NZ Scoop site, arguing that DREs are being crammed down the throat of American democracy by the structure of HAVA as it interacts with voting rights. See

On Friday, the Cramdown just became force feeding with a firehose. It held that punch card and central count optical scan systems were, RELATIVE TO TOUCH SCREEN DRE’s, unconstitutional under the Equal Protection of the US Constitution as interpreted by Bush v Gore.To the extent voting technologies have differing error rates, it creates a huge force to require statewide DREs (or other technologies). Uniformity avoids such equal protection claims.

However, as pointed out Wednesday in the cramdown piece, HAVA heavily favors DREs in its structure and probably in its outright intent (though we need not resolve the question of intent to see and prove the actual impact in favor of DREs from the statutes themselves, among other factors)

Previous History: The United States District Court had previously denied the Pro-Touch Screen plaintiff’s equal protection claim, which said that punch card and central count optical scan systems violated the Equal Protection clause of the US Constitution by disproportionately disfranchising minority voters. The District Court also held that it would reach the SAME result under either “rational basis review” or the higher and only meaningful standard of review of “strict scrutiny”.

Holding: In reversing the District Court’s unpublished decision with a decision to be published, the 6th Circuit followed BUSH V. GORE and held that some counties counting a certain way while other counties counting another way violates equal protection. The 6th circuit held that it was bound by precedent of Bush v Gore.

This means that states must apparently have a uniform system of vote recordation/tabulation or else any significant disparities in error rates for those systems would violate the equal protection. And, unlike the district court which used rational basis, the Sixth Circuit suggested that strict scrutiny should apply. However, the District Court had previously said that the level of scrutiny did not affect it’s analysis. So the District court will now have new law to apply, but the clarification that strict scrutiny applies probably won’t affect the result, if anything it increases the court’s concern or activism level to intervene to insure uniform voting technology throughout the state.

While my analysis is ongoing (and I’m taking a copy of the 47 page opinion to the Y today while the kids swim) there appears to be two major implications with two caveats that are not encouraging:

(1) If states use different technologies including CENTRAL COUNT optical scan and DRE, if they generate different error rates they can violate Equal Protection under Bush v Gore

(2) At least for the 6th Circuit if not the nation, the Holt “audits” that thereafter require the paper to prevail in “at least 2%” of the precincts actually audited is a slam bam thank you ma’am reversal under Bush v Gore because the portion audited is treated unequally relative to the rest of the county and state. One can audit to one’s heart’s delight, but the notion that one precinct or county gets its votes counted more accurately than another offends Bush v Gore. Bush v Gore ignored the fact that counties or precincts are not “protected classes” like minority voters are, but it is the law of the land so in effect it created a new protected class under Equal Protection jurisprudence.

CAVEATS: The Sixth Circuit case may be headed to the US Supreme Court, in which case all bets are off, but we’re not necessarily improving….


Paul Lehto

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