4. If the gubernatorial recall election and vote on Proposition 53 and Proposition 54 proceed on October 7, 2003, as presently scheduled, voters in at least six California counties will disproportionately be denied their right to have their votes counted, as the result of the use of antiquated and unreliable pre-scored punch card (“PPC”) voting machines in those counties. Counties in the State of California use a variety of voting mechanisms with widely disparate levels of effectiveness in accurately recording voters' intentions. The result of this hodgepodge of voting systems is that a disproportionate number of votes in some counties are not counted at all, and that a grossly disproportionate number of African-American, Latino, and Asian-American voters in the State do not have their votes counted at all. Moreover, according to many publicly reported polls of registered voters in California, both of these elections are projected as close races, the outcome of which could be decided by narrow margins.
5. In 2000 and 2002, the most recent statewide elections, millions of California registered voters used pre-scored punch card voting machines that result in disproportionately high rates of spoiled, uncounted, and unmarked ballots compared to other systems used in the state. In the November 2000 election, 53.4% of voters statewide used pre-scored punch card machines. Yet ballots cast using pre-scored punch card machines accounted for 74.8% of all ballots that did not register a vote for the President of the United States. On information and belief, over 8.4 million people in counties using pre-scored punch card machines were registered to vote at the time of the November 2000 general election, over 5.9 million people actually voted, and there were over 132,000 uncounted votes on these machines. Pre-scored punch card machines resulted in an average combined overvote (the machine reading more than one vote and thus disqualifying that vote) and undervote (the failure of the machine reading the punch card to read any vote) rate of 2.23%. The combined overvote and undervote, herein referred to as the “error rate,” for these machines is more than double the error rate of any other type of machine or system used in California. The error rate in Los Angeles County, which presently uses VotoMatic pre-scored punch card machines (identical to the voting machines used in several counties in Florida during the November 2000 election), and where 4,075,037 registered voters reside, was more than 4½ times the error rate in Riverside County (2.7% error rate, compared to .59%).
6. The use of pre-scored punch card machines has a disproportionate adverse impact upon people of color, including African-American, Asian-American, and Latino voters. That is because people of color in California are more likely to live in counties that continue to use PPC systems and because, within those counties, PPC systems lead to high rates of undervotes and overvotes for people of color and those with lower levels of education.
7. A gubernatorial recall election has been set for October 7, 2003. At that election, California citizens will vote on whether to recall Governor Gray Davis and, if so, on whom will replace him. If the scheduled election proceeds on October 7, 2003, at least six counties -- including Los Angeles County, the state and country’s most populous electoral jurisdiction -- will use PPC voting machines. This will result in the disproportionate disenfranchisement of those counties’ voters, and will have an especially severe impact on people of color.
8. In addition to the gubernatorial recall, the October 7, 2003 ballot is presently scheduled to include Proposition 53, which would ask voters if they want to expand significantly the funding for State and local physical infrastructure projects, earmarking up to $850 million in 2006-7 for highways, parks and water projects, and potentially several billions of dollars in future years, and Proposition 54, the so-called “Racial Privacy Initiative,” which would prohibit all state and local entities from inquiring into or collecting data regarding race or ethnicity. The inclusion of this racially charged measure on the October 7, 2003 ballot would work a special unfairness upon people of color, in light of the fact that PPC machines will continue to be used in that election, thereby diminishing the votes of African Americans, Latinos and Asian Americans.
9. To prevent the threatened violations of voters’ rights under both the Fourteenth Amendment and Section 2 of the Voting Rights Act, Plaintiffs seek preliminary and permanent injunctive relief, requiring the Secretary of State to postpone the scheduled recall election until a date on or after March 1, 2004, the date as of which PPC machines will be decertified and may therefore no longer be used in California elections.

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Professor Rick Hasen
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com