I'm sure there will be more momentous and probing comments about this
decision, but I was intrigued by one paragraph near the end:
"We must of course also look to the interests represented by the
plaintiffs, who are legitimately concerned that use of the punch-card
system will deny the right to vote to some voters who must use that
system. At this time, it is merely a speculative
possibility, however, that any such denial will influence the result of
the election."
What is the court suggesting ought to be done at some other time if it
turns out that the election's outcome is affected by the uneven
miscounting of votes in different counties? I think the answer
should be "nothing," for reasons that Prof. Hasen has been
outlining for quite a while. If you're going to try to fix a
problem like this, it is much better to do it in advance than after the
votes have been cast. Perhaps the balance of the hardships does
favor going forward with the election even if there's a possible
constitutional violation; but if the election ends up turning on
miscounted votes and the court decides to get involved at that time, it's
hard to imagine anyone thinking it wouldn't have been better to deal with
the issue in advance.
J. J. Gass
Associate Counsel, Democracy Program
212-998-6281
jj.gass@nyu.edu
Brennan Center for Justice at NYU School of Law
161 Avenue of the Americas, 12th Floor
fax 212-995-4550
www.brennancenter.org