More from Paul Lehto:
A brand new published case in the 6th Circuit called Stewart v Blackwell holds that punchcards and central count optical scan voting systems are unconstitutional under the Bush v. Gore (2000) Equal Protection analysis, while touch screen DREs are upheld. http://www.ca6.uscourts.gov/opinions.pdf/06a0143p-06.pdf
The method of analysis the Stewart v. Blackwell case uses distinguishes between “notice” technologies that inform the voter that they have undervoted or overvoted, and “non-notice” technologies like central count optical scan that do not give a special notice. This is generally how the Court distinguished the upheld technologies from the struck down technologies. Note, however, that paper ballots are a “non-notice” technology, in that they do not talk back to the voter and inform them of possible mistakes regarding overvoting or undervoting. Thus, paper ballots appear highly likely to be subject to challenge in a future case where paper ballots are used.
Although a state could have statewide paper ballots and thereby seem on the surface to avoid a direct equal protection challenge, the *separate* HAVA requirement for disabled-accessible voting that is satisfied on a per se basis by one DRE per polling place under a specific HAVA subsection will directly have the effect of re-injecting the Equal Protection issue right back into each and every hand counted paper ballot polling place even in a state composed entirely of paper ballots, because the disabled accessible voting system that supplements the paper ballots is by definition *different* than the nondisabled voting system, just like a person using a wheelchair is a different “locomotion” system than a person walking on two legs. The only system that currently can serve both and avoid equal protection issues while keeping undervoting and overvoting rates the same for the disabled and the nondisabled is DREs.
HAVA was written right on the heels of Bush v. Gore and some people seem to have had that case in mind, perhaps others were not thinking of Bush v. Gore when they voted on HAVA.
Stewart v. Blackwell still found Bush v. Gore to be binding Equal Protection precedent despite the line in Bush v. Gore saying that it ‘wasn’t’ of precedential value.
To fully appreciate Stewart v. Blackwell’s equal protection holding, understanding some basic point is critical, so I ran these points below by even a professor of Constitutional Law who agreed they are accurate:
1. The law does not have to be fair, nor does it have to be just, nor does it have to follow science. It only needs to be Constitutional.
2. Bush v. Gore is grounded on the Equal Protection Clause to the US Constitution
3. The Supreme Court is the last word on interpreting the constitution. Period.
3(a). A non-caveat to the previous sentence: Though Congress can reverse a Supreme Court case that only involves interpretation of a statute (such as by amending the statute in question), nothing Congress says or does can interpret the Constitution contrary to the Supreme Court’s interpretation of it. It is, as stated earlier, the last word on Constitutional matters.
4. In addition to complying with HAVA (the Help America Vote Act) and state law, voting technologies must also comply with Bush v. Gore. These three are all separate sources of law impacting the arena of voting systems, though they occasionally interact, they are still separate sources of law.
The April 21, 2006 Holding in Stewart v. Blackwell, 6th Circuit:
Citing Bush v. Gore and stating that it was precedent even if the US Supreme Court said at one point that it wasn’t precedent, different ways of counting votes that generate different error rates were held to violate the Constitution. Specifically, the Equal Protection Clause is violated when “non-notice” voting systems (punch-cards and central count optical scan) end up with higher residual error rates than “notice” technologies (DREs and precinct count opscans that specifically warn the voter as to overvotes and undervotes)
Note that non-notice systems like central count opscan and paper ballots can comply with HAVA via voter education programs. However, that is totally independent of whether they comply with equal protection. If the problem is defined, as it is in Stewart v Blackwell, as a problem with the TECHNOLOGY’s notice or lack thereof, it does not make sense as a remedy to have voter education, as HAVA does, because it is the technology that needs to be “educated” so to speak. So, while only central count op-scans were technically at issue in this case, the saving clause that protects both central count opscans and paper ballots under HAVA by allowing voter education to substitute was not going to save central opscans from equal protection attack under Bush v. Gore. And, central opscans were in fact struck down in Stewart V Blackwell, while paper ballots were not in the counties challenged or generally used in Ohio.
So, paper ballots will not survive either when their case comes up IF THEY HAVE THE HIGHER RESIDUAL OR ERROR NUMBERS relative to DREs or the technology paper is being compared to.
Another possibility is the recognition that the wrong questions are being asked here, or questions that are too narrow, because notice focuses on what DREs are good at it, and ignores all their problems. For example, a broader notion of “accuracy” could be litigated, that would include other security considerations and so forth. But this, IMHO, is just another structural factor that favors DRes in HAVA, as explained in more Detail in the essay Cramdown, Stripdown, Lockdown Democracy in the United STates. See http://www.scoop.co.nz/stories/HL0604/S00233.htm
The bottom line is that the availability of Equal Protection attack on county by county or precinct by precinct basis will have a powerful effect to “encourage” uniform voting systems throughout a given state. In turn, with federal law supreme that is the force that helps to “encourage” uniformity between all states. With many jurisdictions going with HAVA’s “one DRE per polling place” language, that may well lead to an equal protection challenge, where the disabled and the nondisabled citizens get together and say “hey, we need to be all on the same system to comply with equal protection”. Just the mere threat of such a suit is enough to constitute a pressure on a county making a decision, in addition to all the other pressures they are under.
First the voting system was privatized, under the belief that Bush v Gore was a one time deal. Now Bush v Gore is resuscitated (or it was never dead) and the Equal Protection analysis it offers will federalize our v
oting system. HAVA heavily favoring DREs as explained in the Cramdown piece above, means touch screen DREs will run the table unless activists find a new and better way to fight, and do it fast.
CONCLUSION — HOW IT WILL GO DOWN
*********HAVA says by statute that HAVA’s accessibility for the disabled provision is “satisfied by one DRE per polling place”. that’s the “safe harbor” or “free pass” for DREs. There’s never a guarantee in the law but that comes close. That one DRE per polling place can then create “equal protection issues” under the overbroad and poorly reasoned Bush V Gore holding if the error rates of the technologies that are being used in said DRE-disabled polling places differ from the other technologies in the polling place or even in other counties, which current research seems to indicate they do. THus, to avoid equal protection challenges, counties and states “should” convert to all DREs. Counties will also want to convert to all DREs for other reasons not fully developed here, including concerns that small numbers of voters on the DREs since only disabled voters will be using them will mean that the privacy of the ballot for disabled voters will be violated. One of the few solutions to that problem is to have more voters or all voters vote on DREs….***********
Yes, there will be stragglers, it will take a few years, there will be holdouts. Many jurisdictions won’t have to have a gun held to their head, their own lawyers will read the statutes and advise as to the risks and the “appropriate” DRE decisions will be made. In addition, we don’t have to reach 100% DREs nationwide in order to in effect be DRE Nation.
As elucidated further in the Cramdown piece above, the only clearly apparent and possible solution is to attack the secret vote counting and lack of transparency, because that can not occur under ANY voting system, of any type. http://www.scoop.co.nz/stories/HL0604/S00233.htm