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Lawsuits attacking punch-card voting machines have proved successful in three of the four states where the issue was litigated. Political action, not court decisions, were directly responsible in two states. But the civil rights lawyers involved say it took the suits to push the issue to resolution. In all three states, the courts rejected defense pleas to dismiss the cases. In California, a court ordered state action. In Florida and Georgia, state officials sought and achieved reforms independently. While the cases still linger in the courts over final details, the lawyers say that the punch-card machines are on their way out in the targeted states and counties. In a fourth state, Illinois, the issue appears headed for trial this year. When the cases were filed early last year, legal scholars said that they might force the U.S. Supreme Court to revisit and translate Bush v. Gore, the ruling that decided the 2000 presidential election on grounds of vote-counting disparities in Florida. The four suits sought to apply Bush v. Gore, charging that the punch cards, with their notorious hanging and dimpled chads, discriminated disproportionately against minority voters by causing large percentages of their votes to be discarded in the areas where they live. If it was unconstitutional for Florida to use different rules in counting votes, the lawyers argued, then it is unconstitutional for states to count ballots using a mix of voting machines with varying degrees of reliability. Now, the civil rights attorneys say, the hard-won reforms seem to have dashed the prospect of the high court explaining itself. “It may be none of these issues will ever get to the Supreme Court, so we’ll never know about Bush v. Gore,” says Laughlin McDonald, director of the American Civil Liberties Union Voting Rights Project. “But I’m not disappointed. I don’t think anybody in his right mind would prefer an uncertain appeal in the Supreme Court over a fix at the local level.” In the end, any victories against punch-card voting equipment have little to do with Bush v. Gore, said Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School. “The 2000 election was generally thought to have shown there was a serious problem with the way in which elections are conducted in the United States, and that put pressure on politicians to make reforms. It’s a political story, not a legal one.” Furthermore, short of a national solution such as federal funding to improve voting equipment, “you have to have political will or legal challenges in each of the 50 states for there to be real reform,” Balkin says. Punch-card machines still are used in some states. Lawyers for the ACLU, the National Association for the Advancement of Colored People and other civil rights groups chose areas where there either had been a public outcry or strong political motives to change the system in the wake of presidential election problems. The resources of local civil rights groups also played a role in determining which states to sue. McLaughlin says that the groups, so far, have no plans to sue elsewhere, in part because there has been no national study on the effects of the various types of voting machines. However, “you don’t have to be very smart, if you’re a politician, to look and see what the effects of these various systems are,” he said. “And the people disproportionately disadvantaged are Democrats.” Some lawyers believe that the four cases will cause a nationwide ripple effect. Dan Tokaji of the ACLU of Southern California points to places including Harris County, Texas, where, even without lawsuits, the punch-card machines are being replaced by systems less prone to error. “The California case ought to send a message throughout the country that counties and states that haven’t gotten rid of their hanging-chad machines had better start doing it now,” Tokaji says. Plaintiffs in the California case, Common Cause v. Jones, No. 01-03470-SVW, cited the high error rate in counting punch-card votes from the state’s nine most populous counties, which claim about 53 percent of the voters and large concentrations of minorities. Their aim was removal of the machines from the list of state-certified voting systems from which the counties must choose. “We never saw it as our role to dictate to the counties,” Tokaji says. “Our priority has been to get rid of the worst machines. The counties are free to convert to any of the other systems, which have error rates of less than half of the hanging-chad machines.” The case met resistance from Secretary of State Bill Jones until last October, when Jones, now a gubernatorial candidate, agreed to decertify the punch-card machines. The state balked at making the change in time for the next presidential election as the plaintiffs demanded, saying that meeting that deadline was impossible. However, U.S. District Judge Stephen V. Wilson granted a motion for judgment, ordering the state to make the change by March 2004 and saying it is feasible for the counties to replace the machines in time. It is the only such ruling by a court in any of the voting-rights cases. “There’s been a lot of complaining about the transition, but the counties are finding a way,” Tokaji says. “If bureaucrats can do things as they’ve always done them, that’s their preference. Only here in California did the intransigence of public officials require us to get a judicial order. And I think it’s pretty clear that it was the lawsuit that made the difference.” FLORIDA, GEORGIA In two other states, Florida and Georgia, state officials began seeking reforms soon after the 2000 election. In the class action NAACP v. Harris, No. 01-0120-C.V.-GOLD, 21 individual African-American voters alleged numerous election irregularities, including the use of the punch-card machines. The state Legislature soon passed the Election Reform Act of 2000, which banned the machines, and populous Miami-Dade County has entered a contract for the touch-screen voting system, which privately notifies voters of any errors and keeps track of all ballots. The plaintiffs now await final regulations and the resolution of other election issues, such as staffing at polling places and the purging of inactive-voter rolls. In Georgia, Secretary of State Cathy Cox and other officials spearheaded reforms after seven African-American voters sued over the undercounted votes from punch-card machines in Andrews v. Cox, No. 1:01-CV-0318-ODE. Georgia’s statute requires converting to a new voting system in stages by 2004, although the Legislature still has not appropriated the money. “I think we have several enlightened public officials in Georgia,” says plaintiffs’ attorney Kenneth S. Canfield of Doffermyre, Shields, Canfield, Knowles and Devine in Atlanta. “I think they recognized the problem and wanted to do the right thing….What role the lawsuit played in influencing their actions is pure speculation at this point. We would like to think we have played a role in moving the state along.” Unless California’s secretary of state appeals the court ruling and other jurisdictions fail to meet their deadlines, the last battleground is Illinois, where the punch-card machines still are in use. Election officials there did try to head off the hanging-chad problems in Chicago and Cook County by spending more than $23 million on devices designed to notify voters when they erred. But the lawyers who brought Black v. McGuffage, No. 01C1208, argue the devices don’t work. In that class action, six named African-American voters from Chicago sued numerous city and state election officials under the equal protection clause and the Voting Rights Act. The lawsuit, which is in discovery and headed for trial by November, seeks to replace punch-card machines in all of the state’s jurisdictions, including Chicago and Cook County. “More than 125,000 votes were lost here in the presidential election, more than in Florida,” says Harvey Grossman, legal director of the ACLU of Illinois. “We have one system that’s accurate and one that’s inaccurate. We say that violates Bush v. Gore.” The case faces a crucial hurdle in the March 19 primary election, which will be the first test in the nation of a system that alerts voters to both over-votes and undervotes. Grossman predicts chaos, noting that most voters do not mark every race on a ballot. The result, he said, will be warnings to massive numbers of voters that they have under-voted, even when it was intentional. If the courts have failed to translate Bush v. Gore in terms of the voting-rights cases, they at least have kept the lawsuits afloat while election officials responded politically. In Georgia and California, judges responding to defense motions even affirmed some of the plaintiffs’ civil rights allegations. But the clout of the litigation in compelling civic action remains as elusive as the application of Bush v. Gore to voting machines. “The most difficult thing to determine is why public officials do what they do,” McDonald says. The litigation “was certainly a factor. I don’t think there’s any doubt about that. It kept the pressure on these folks.”

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