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Federal judges in three states have rejected defense motions to dismiss voting rights cases that were based on Bush v. Gore, and one, in California, specifically pointed to the U.S. Supreme Court decision. A fourth ruling is pending in Illinois. As legal scholars had predicted, the cases, even in the preliminary stage, have brought sharply divergent responses from a bench that got little guidance from the U.S. Supreme Court. The confusion could produce the next Supreme Court case on voting rights to answer the questions raised in Bush v. Gore. All four of the complaints by civil rights groups cite the high court case, even though the Supreme Court tried to restrict its 5-4 decision to the case over the 2000 presidential election. It refused to address the difference among voting methods in different counties in a state. In California, the judge has let stand the constitutional claims in a case attacking punch-card balloting as unfair to voters who must use it — more than half of the population. In Georgia, the judge dismissed all constitutional claims without mentioning the Bush v. Gore decision. The Florida judge tentatively denied a defense motion to dismiss that addressed no such issues. The four suits, filed earlier this year, claim that the punch-card voting system, the type that earned notoriety in Florida, violates the equal protection clause of the 14th Amendment by reducing users’ chances of having their votes counted accurately. Furthermore, the lawsuits claim, the old, less efficient, punch-card machines deny the rights of racial minorities in disproportionate numbers, in violation of the Voting Rights Act of 1965. “The Court in Bush v. Gore went out of its way not to tell us anything about what the new principle meant,” says Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School. “If you’re a district court judge, you’re on your own.” DIFFERING MINDS So far, the courts have addressed only issues raised in the defending states’ motions to dismiss. But the opinions in California and Georgia show the extent to which judicial minds may differ, just as they show differences in the way the plaintiffs framed the debate. The Georgia judge, Orinda D. Evans, on Aug. 20 denied the state’s motion to throw out the entire case, but she dismissed both of the plaintiffs’ constitutional claims and made no mention of Bush v. Gore. Three days later, Los Angeles judge Stephen V. Wilson denied the defense motion and discussed the controversial Supreme Court decision in an opinion only seven pages long. If the judge found no clear answers in Bush v. Gore, he did take a hard look at the precedents on which that opinion relied. “The Court did not articulate a standard of review in this case. It merely said that a state may not value one person’s right to vote over another via ‘arbitrary and disparate treatment,’ ” Wilson wrote. “ It appears that perhaps the Court was using a heightened standard of scrutiny but also was finding the Florida recounts to be arbitrary and discriminatory.” Common Cause v. Jones, No. 01-03470-SVW. Four civil rights and labor groups are suing California Secretary of State Bill Jones for including the punch-card voting machines on the list of options from which the state’s counties may choose. The plaintiffs contend that the machines are unreliable and deny voters in the state’s nine most populous counties an equal chance to have their votes counted. Those counties, which contain about 53 percent of California’s voters, are home to large numbers of minorities, who are affected disproportionately, the suit claims. The state sought dismissal on the ground that the blame lies with the counties using the punch-card system, not with the list of choices provided by the secretary of state. It argued that the case must not proceed under the equal protection clause because it does not allege intentional racial discrimination and fails the strict legal test of a series of political redistricting and vote-dilution cases under the Voting Rights Act. Wilson noted, however, that the plaintiffs relied on the equal protection clause not on the basis of racial discrimination but for “abridgement of the fundamental right to vote.” He noted that in four of five opinions concerning that right, the high court struck down the procedure in question. “Even if the more lenient standard is ultimately applied by this court, plaintiff has alleged facts indicating that the secretary of state’s permission to counties to adopt either punch-card voting procedures or more reliable voting procedures is unreasonable and discriminatory,” the judge wrote. GEORGIA SUIT Wilson’s Atlanta counterpart, Evans, ruled that a dispute over the counting of votes did not meet the test of the equal protection clause without intentional discrimination. She wrote, “The irregularities in counting the votes cited by plaintiffs reflect the need for improvement in the state’s mechanism for conducting elections. … They do not render the election fundamentally unfair in a constitutional sense.” Andrews v. Cox, No. 1:01-CV-318-ODE. Seven black voters are suing Georgia Secretary of State Cathy Cox on the ground that minority voters are less likely than whites to have their votes counted because of the tendency of punch-card machines to disqualify ballots. Evans dismissed the due process and equal protection claims, but left intact the state law and Voting Rights Act claims, noting that Congress changed the act in 1982 to specify that the discrimination need not be intentional if discriminatory results can be shown. The Georgia suit relies entirely on claims of racial discrimination, unlike the California complaint, which alleges racial discrimination under the Voting Rights Act but not in its equal protection claim. The Georgia attorneys presented their case as one of vote dilution, while, in California, Wilson agreed with plaintiffs’ attorneys that their case is one of “straight vote denial.” Redistricting and vote-dilution cases present much more stringent legal challenges. “The ruling here in Georgia was inconsistent with Bush v. Gore, assuming Bush v. Gore meant what it seems to say on its face,” said plaintiffs’ attorney Kenneth S. Canfield of Doffermyre, Shields, Canfield, Knowles and Devine in Atlanta. “On the face of it, if it’s unconstitutional to have the state of Florida count the votes using different rules, you have to think it would be unconstitutional for the state of Georgia to count the votes using different ballot machines. Both practices do the same thing.” Nevertheless, plaintiffs’ attorneys in the Georgia case say that, as a practical matter, the judge’s ruling kept their case afloat. So far, a similar voting rights case in Florida also has survived preliminary opposition, even though the motions addressed in the Aug. 14 order of Judge Alan S. Gold concern only procedural and peripheral issues. NAACP v. Harris, No. 01-0120-C.V.-GOLD, 21. In that class action, individual black voters are suing Secretary of State Katherine Harris and several other election officials on allegations far more numerous than in the other three cases. Punch-card voting machines became a moot issue in Florida with the Legislature’s passage last spring of the Election Reform Act, which banished the system. The plaintiffs, however, still are pursuing some of their claims, on the ground that the reforms do not resolve all the irregularities that marked Florida’s handling of the presidential race. ILLINOIS CLASS ACTION American Civil Liberties Union (ACLU) lawyers in Illinois contend that changes made by the state since the election are inadequate. In a class action, six named black voters are suing numerous city and state election officials under the equal protection clause and the Voting Rights Act. Black v. McGuffage, No. 01C1208. Rather than abandon the punch-card machines, Chicago and Cook County officials invested heavily in additional technology that warns voters of ballot errors. The challenge for plaintiffs lies in convincing the court that the new devices have failed a fair test since the case was filed, says Harvey Grossman, legal director of the ACLU of Illinois. Plaintiffs’ lawyers say that, although the equipment was used in a special municipal election, it works only on short ballots containing a few candidates’ names and raises privacy and other issues. Two defendants who were most conspicuous in their efforts to initiate election reforms even before the lawsuits were filed are the secretaries of state in Georgia and California, Cox and Jones. “There is a sort of schizophrenia on behalf of these elected officials,” said Laughlin McDonald of the ACLU Foundation of Georgia. “Then when you file the lawsuit, it’s as though you filed against a different entity.” State voting rights cases have also been filed since the presidential election, in addition to the four federal court attacks on punch-card balloting. The ACLU, the Urban League and an African-American bar association filed a class action in Missouri’s 22d Circuit Court on behalf of 250,000 registered voters, accusing St. Louis officials of mishandling elections to the extent of denying equal voting rights. Moore v. Board of Election Commissioners, No. 014-00587. Plaintiffs’ co-counsel Denise Lieberman, legal director of the ACLU of Eastern Missouri, said the case might be resolved through negotiations, noting that city officials had tried in vain to obtain state funding to improve the system. L.A.: COST AND ARGUMENTS The cost of state reforms can be significant. The ACLU estimates that in Los Angeles County alone the cost of upgrading voting technology would be $100 million. Nevertheless, “the relief we seek is for the state to allocate monies, and hopefully to pass legislation, allowing or even requiring counties with high undervotes and overvotes to modernize their equipment,” the ACLU Foundation of Southern California says in a statement. In California the state has argued that subjecting voting regulations to the court’s strict scrutiny would impede efficient elections. Some critics of the voting rights cases even say they could even result in a regression in voting technology. Los Angeles plaintiffs’ attorney Bradley S. Phillips of Munger, Tolles & Olson noted in the court hearing that the Supreme Court has held that voting restrictions are justified by compelling government interests only when those regulations are not discriminatory. “We allege these are not non-discriminatory regulations,” he said in a brief. “The result is the same as if the secretary of state approved standards and procedures that allowed registrars in counties with large (minority) populations randomly to discard one out of every 40 ballots while the registrars in other counties randomly discarded only one out of every 200 ballots.”

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