First 'Hanging Chad' Case Heads to Trial

Four years ago, the "hanging chad" entered the country's lexicon during the Florida recount in the Bush-Gore presidential election. This week, the first case to litigate the constitutionality of punch-card voting commences in federal court in Ohio. Three law professors and the American Civil Liberties Union charge that a disproportionate number of minorities in three Ohio counties had their votes rejected because of flaws in the voting system.

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Four years ago, the “hanging chad” became part of the country’s lexicon during the Florida recount in the Bush versus Gore presidential election. This week, the first case to litigate the constitutionality of punch-card voting is scheduled to commence in federal court in Ohio. The challenge is brought by three law professors and the American Civil Liberties Union, who claim that a disproportionate number of minorities in three Ohio counties had their votes rejected in the last presidential election because of punch-card voting. The case, Stewart v. Blackwell, No. 5:02CV-2028 (N.D. Ohio), begins today before Judge David Dowd. The lawsuit contends that Ohio voting system inconsistencies violate the equal protection clause of the 14th Amendment and the Voting Rights Act of 1965. The suit seeks a court order requiring the Ohio secretary of state to decertify the punch-card ballot. They want to invalidate the system to put pressure on state officials to come up with a voting method with an equal statistical error rate for all voters. “In Ohio, people that vote in punch card counties have a statistically higher probability of having their votes thrown out because of an error,” said Professor Richard Saphire of the University of Dayton School of Law, one of the lead plaintiffs’ lawyers. Of the 88 counties in Ohio, about 69 use punch-card voting, Saphire said. Some of the more affluent counties have upgraded to newer touch-screen technology that has a lower error rate. Therefore, minorities who live in the less affluent neighborhoods are more likely to have their votes rejected, allege the plaintiffs’ lawyers. The ACLU’s research of the last presidential election found that the rejected ballots in an Ohio county that used punch cards amounted to six times higher than a county that used touch-screen technology. A total of 93,000 Ohio voters had their votes rejected. In some minority neighborhoods near Akron, the rejected rate reached 10 percent to 15 percent. “Everything should be done to make the system as reliable as possible and ensure that the public is getting a fair count,” said Laughlin McDonald, the director of the ACLU’s Voting Rights Project. The ACLU has pushed legal challenges in four states — Florida, California, Illinois and Georgia — that have switched to a uniform voting system. Ohio is the first case where state officials are defending their system in court. “Ohio has a unique set of election laws,” said the state’s lawyer, Assistant Attorney General Rich Coglianese. “What we do know is that we are compliant with state and federal law.” State officials say the secretary of state’s office is already on a path to upgrade Ohio’s voting technology, but they deny the plaintiffs’ charge that minority voters have been disenfranchised. “They brought this as a vote-denial case,” said Coglianese. “Nobody has ever demonstrated that Ohio has denied anyone the right to vote.” The plaintiffs’ lawyers say the critical problem with punch-card voting is that it does not allow a user to check his vote. There are no safeguards to alert a voter who elects too few candidates or elects too many.

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