Subject: Re: Is it Possible Kerry Lost Ohio Because of Punch Cards?
From: Rick Hasen
Date: 11/4/2004, 5:00 PM
To: Marty Lederman
CC: election-law <election-law@majordomo.lls.edu>

Marty,

As you may know I have made that argument about punch cards repeatedly, first in my 2001 Florida State article on the meaning of Bush v. Gore:
http://www.law.fsu.edu/journals/lawreview/downloads/292/Hasen.pdf
and more recently in an amicus brief I filed on my own behalf in the ACLU punch card litigation during the California recall:
http://news.findlaw.com/hdocs/docs/elections/svrepvshlly82703amirh.pdf

But there are others (including Roy Schotland and Abner Greene) who read BvG more as a case about due process, where the issue is one of giving unfettered discretion to partisan election officials.  Under that reading, I think one can argue that there is no constitutional problem with intra-state disparities in voting technologies, even if they have racial and class correlations.

The policy defense I think would be that jurisdictions should be free to make resource allocation decisions, such as to choose a new ambulance over more reliable voter technology.  I don't buy the argument, but I have heard it often.
Rick



Marty Lederman wrote:
Well, whether or not he's correct about the actual numbers, can we all agree that it is inexcusable that voting mechanisms are not uniform throughout a state?  And, more particularly, that there is no justification for a state tolerating a much higher degree of discarded or unreadable votes in particular precincts -- typically correlated with class and/or race?  (Indeed, as Rick has often argued, it's a scandal of sorts that, after 2000, there is not a federally imposed uniform nationwide "manner" of voting for federal office.)
 
I would go further and argue that if the equal protection rationale of BvG is taken at all seriously, then it is surely unconstitutional for a state to permit some counties to use voting methods that are foreseeably far less reliable and accurate than those used in other counties.  This was, in essence, the heart of the claim raised in the ACLU litigation in the California recall election.  I thought it was a good argument then (I worked on the case), and I do now.  But even if you disagree -- if you believe either that BvG's equal protection rationale was a bunch of hooey or that it can somehow be limited to the particular "facts" of that case -- is there any policy justification for the disparities that continue to exist, other than the actual, inadequate "reason" (namely, that some counties are poorer than others)? 
 
 
----- Original Message -----
From: Rick Hasen
To: election-law
Sent: Thursday, November 04, 2004 6:05 PM
Subject: Is it Possible Kerry Lost Ohio Because of Punch Cards?

Is it Possible Kerry Lost Ohio Because of Punch Cards?

So alleges Greg Palast here. I have no idea of Palast's numbers are correct, and in particular whether he has lumped together both votes lost by the punch card machines and deliberate undervotes. I haven't seen any undervote figures yet for this election. I'd appreciate hearing from others who have some data to evaluate this kind of claim. 
-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
    

-- 
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://electionlawblog.org