CLEVELAND – In the first case of its kind to go to trial, a federal court in Ohio will hear arguments starting Monday in the American Civil Liberties Union’s challenge to use of the infamous “hanging chad” punch card machines and other inadequate voting technologies in the upcoming election.
“Every voter in Ohio should be able to have confidence that his or her vote will be accurately counted by the election technology,” said Meredith Bell, an attorney with the ACLU’s Voting Rights Project who will be presenting arguments along with attorneys from the ACLU of Ohio. “Currently, only a small minority of Ohio's voters use equipment that notifies them of errors that prevent their ballots from being counted; the majority of voters in Ohio are still forced to use antiquated, error-fraught equipment.”
In Stewart v. Blackwell, filed in October 2002, the ACLU will argue that Ohio’s use of non-uniform, unequal and inadequate voting technologies, including the “hanging chad” punch card, is a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and that the use of punch cards has a disproportionate and negative impact on the voting rights of African-Americans in certain counties.
Ironically, the main defendant in the lawsuit, Ohio Secretary of State J. Kenneth Blackwell, has been vocal in calling for the replacement of the defective punch card technology, saying that the use of the technology as the state’s primary voting device “invites a Florida-like calamity.” The lawsuit also names as defendants officials in Summit, Montgomery, Hamilton and Sandusky counties.
Currently, 69 of Ohio’s 88 counties use punch-card voting, representing nearly 73 percent of all the registered voters in Ohio. In the 2000 presidential election, nearly 94,000 Ohioans had their ballots rejected.
An ACLU of Ohio study of the 2000 election found that disparities in rates of discarded ballots differed with the type of voting technology used. In Franklin County, which uses “touch-screen” voting technology, the percentage of rejected ballots countywide was one-half of one percent, or six times less than in Summit County, where "punch-card" ballots were used. Significantly, the study also found a strong relationship between the racial composition of a voting precinct and the percentage of discarded ballots in that precinct.
“Two-thirds of Ohio's voters continue to use the very same punch card voting machines that caused the Florida election fiasco. By failing to act, the State of Ohio has left our democracy hanging by a chad,” said ACLU of Ohio Volunteer Attorney Daniel Tokaji.
Following the widespread problems with punch cards in the 2000 election, the ACLU successfully challenged the use of the machines in six states, including Ohio. Four of those lawsuits—in California, Florida, Illinois and Maryland—resulted in a settlement in which the use of punch card machines was discontinued. The Georgia case was rendered moot after officials decertified the punch card machines and adopted statewide touchscreen voting. The Ohio case is the only one of the ACLU challenges to reach the trial stage.
Judge David D. Dowd, who is hearing the case in U.S. District Court in Akron, has tentatively scheduled one week for the trial. Attorneys in the case said that given the impending election, they hope for a relatively quick decision.