'Bush v. Gore' Prompts Voter-Access Suits by Civil Rights Groups

In lawsuits across the country, civil rights plaintiffs are seeking to use the legal reasoning that put George W. Bush into the White House to attack error-prone balloting procedures. Suits in Florida, Georgia, Illinois and California, brought on behalf of minority voters, are based squarely on Bush v. Gore, in which the U.S. Supreme Court applied the 14th Amendment’s equal protection clause to deny a manual recount of Florida ballots. Those bringing the suits seek to extend the principle to equipment. They contend that error-prone punch-card voting machines abridge rights as much as inconsistencies in recounting ballots, particularly when it comes to minority voters, who live in greater numbers in areas where those machines are used. “This case is Bush v. Gore gone west,” says Mark Rosenbaum, legal director of the American Civil Liberties Union of Southern California. Election officials in the target states generally say they welcome the cases as a way to persuade reluctant legislators to spend the money to upgrade voting equipment. Since the election, voting reform has been proposed in legislatures around the country. Cases have been filed asking courts to order these actions: � California: Set standards for voting equipment; discontinue using punch-card machines; establish standards and procedures for manual recounts. � Florida: Decertify punch-card voting methods and make a host of changes aimed at widening the pool of voters. � Illinois: Ban punch-card voting; give voters with irregular ballots the chance to correct them. � Georgia: Ban “punch-card systems, voting machines and optical scanning systems,” all of which plaintiffs say make mistakes. Suing besides individual plaintiffs are the ACLU, the National Association for the Advancement of Colored People, a Georgia law firm and other groups. Constitutional experts forecast a slew of such cases after the Supreme Court, in a 5-4 vote, ended the Florida recount — and the presidential race — by ruling that recounting votes using different standards in different counties denied voters equal protection. The Court tried to restrict the decision to the Florida recount, saying it would not address variations in voting methods among all U.S. counties. Bush v. Gore, No. 00-949. But the decision made it clear “that every vote must be given equal weight under the Constitution,” the ACLU said when it announced the filing of the first three suits in January. “The ACLU and other civil rights organizations are now taking the Supreme Court at its word.” The cases filed in Florida, Georgia and Illinois on behalf of black voters allege that the plaintiffs were disproportionately denied their right to vote by those states’ voting systems. All four cases seek to replace the punch-card voting devices, which allegedly yield a much higher percentage of uncounted or disqualified ballots than other systems. Some critics bitterly accused the Court of resorting to expediency for political reasons and trampling states’ rights. Many questioned the Court’s attempt to limit the scope of the ruling, saying that voting methods of varying reliability in different counties of individual states deny far more voters their rights than the variations in Florida. EXPERTS’ VIEWS But some legal scholars think that’s not the end of the story. Why, they ask, would the Court recognize an equal protection violation in the Florida recount and not in another context? “It’s the first time the U.S. Supreme Court has applied the equal protection principle to the tabulation of individual votes,” says University of Michigan professor Evan H. Caminker, a constitutional law scholar and participant in the California case. “In theory, these cases could have been brought even without Bush-Gore, but it would have been harder to convince lower-court judges. It may be that at some level, even if people thought this was a constitutional problem, it was a problem whose immediate need of a fix may not have been so self-evident.” “The Court said there wasn’t enough time to fix the problem in the Florida case. But in most cases, there is enough time,” says Michael J. Gerhardt, a law professor at the College of William and Mary. “The Bush-Gore decision had to do with the fact that Florida didn’t have in place a system for ensuring uniform application of a standard across the board in measuring legal votes. If there isn’t a standard, either in a state’s constitution or in case law, those states present a scenario that will be hard to distinguish from Bush-Gore.” But law Professor Daniel H. Lowenstein of the University of California at Los Angeles says of the Supreme Court, “The case they were dealing with … was a judicially supervised statewide count where you had essentially identical ballots from different parts of the state that might have been treated differently. That’s quite different from different voting machines in different counties … where there might be all sorts of administrative reasons for the difference.” The California suit was filed in April by the ACLU, two law firms, the AFL-CIO and a Michigan law professor on behalf of several demographic groups. Common Cause v. Jones, No. 01-03470-SVW (C.D. Calif.). The federal complaint says that the rights of black, Latino and Asian voters were abridged by the inaccuracy of the punch-card voting machines used in nine counties. “The punch-card voting machines used in counties like Los Angeles, San Diego and Alameda belong in junkyards, not voting booths,” the ACLU’s Rosenbaum told a press conference. “Votes are cast, then cast away.” California Secretary of State Bill Jones has sought $300 million to upgrade the voting system and has publicly welcomed the suit. The experts think that the lower courts’ responses to the voting rights cases will vary from state to state, depending on the facts. The most problematic case, they say, might be the one in Florida. There, the NAACP and 21 black voters are suing the secretary of state, the director of the state Division of Elections and the election supervisors of seven counties on numerous grounds. NAACP v. Harris, No. 01-0120-C.V.-GOLD (S.D. Fla.). The federal class action claims, among other things, that African-Americans were wrongfully purged from voters’ lists, that their registration applications were not processed properly and that they were turned away from polling places despite being registered to vote. The NAACP legal department and other civil rights groups are demanding, in addition to correction of the alleged violations, that federal examiners be appointed to oversee elections in seven Florida counties for 10 years. “Typical voting rights claims involve minority rights,” says Laughlin McDonald of the ACLU Foundation in Georgia. “But these cases present issues that go beyond that. There are lots of voters who aren’t minorities who are disadvantaged.” On May 9, Florida granted some of what the plaintiffs were seeking. Gov. Jeb Bush signed into law a bill granting $32 million to Florida’s 67 counties for comprehensive election reforms, including abandoning the punch-card voting system and switching to optical scanning, in which voters fill in a bubble using a pencil; voter education; training of poll workers; a uniform state ballot; and uniform standards for recounting disputed ballots. In Georgia, Gov. Roy E. Barnes and Secretary of State Cathy Cox began seeking election reform well before Atlanta’s Doffermyre, Shields, Canfield, Knowles & Devine, with the ACLU, filed Andrews v. Cox, No. 1:01-CV-0318-ODE (Fulton Super. Ct.). Both officials are defendants in the suit, filed in Fulton County Superior Court in January on behalf of seven black voters. Although the Georgia Legislature passed a bill in March to require a uniform voting system, it doesn’t take effect until 2004, well after next year’s election, and it has not been funded. “There really is no reason why the people in one county may have their votes counted four, five or six times less than people in another county simply because of the type of machinery that was used,” says Kenneth S. Canfield of Doffermyre. In Illinois, the ACLU filed a federal class action against members of the state Board of Elections and the Chicago Board of Election Commissioners on behalf of three black Chicago voters. Besides targeting punch-card voting machines, Black v. McGuffage, No. 01-C-1208 (N.D. Ill.), complains that although Chicago’s system is technologically capable of notifying voters when they err on ballots, state law prohibits doing so. “We do rely on Bush-Gore for some of our claims, but we rely much more heavily on the Voting Rights Act, which gives us much broader opportunity for relief,” says William T. Barker of Chicago’s Sonnenschein Nath & Rosenthal. “Even with the broadest possible view of Bush-Gore, there probably isn’t anything we can do under Bush-Gore that we can’t do under the Voting Rights Act.” OUTCOMES AND OUTLOOKS One academic says that the cases’ outcomes could depend on the outlook of each trial judge because the Supreme Court’s message was so mixed. “If you were a lower court judge, you would probably read Bush-Gore very narrowly, as a one-shot deal concerning individual manual tabulation,” says Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School. “You could easily get rid of these cases on that ground. On the other hand, you might have reasons to try to expand Bush-Gore. If you’re on the right, expanding Bush-Gore would tend to send the signal that it was not in fact a sham but a serious statement of principle. This would tend to shore up the legitimacy of what the Supreme Court did in Bush-Gore. “If you’re a Democrat, you might say if they were serious about the equal protection clause you’ll go them one better — equal protection’s a problem because of technological differences. “I suspect you will see a split among the courts,” says Balkin. Basically the Supreme Court engaged in a lawless act on Dec. 12 and wrote a shoddy, ridiculous opinion. But now it’s law.”