Stewart v. Blackwell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0143p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiffs-Appellants, -

EFFIE STEWART, et al.,

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No. 05-3044

v.

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J. KENNETH BLACKWELL, et al., -

Defendants-Appellees. -

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Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 02-02028—David D. Dowd, Jr., District Judge.

Argued: December 6, 2005

Decided and Filed: April 21, 2006

Before: MARTIN, COLE, and GILMAN, Circuit Judges.

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COUNSEL

ARGUED: Daniel P. Tokaji, OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW,

Columbus, Ohio, for Appellants. Richard N. Coglianese, OFFICE OF THE ATTORNEY

GENERAL, Columbus, Ohio, Jeffrey A. Stankunas, ISAAC, BRANT, LEDMAN & TEETOR,

Columbus, Ohio, for Appellees. ON BRIEF: Daniel P. Tokaji, OHIO STATE UNIVERSITY

MORITZ COLLEGE OF LAW, Columbus, Ohio, Richard Saphire, DAYTON LAW SCHOOL,

Dayton, Ohio, Laughlin McDonald, Meredith E.B. Bell-Platts, AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, Atlanta, Georgia, Paul F. Moke, WILMINGTON COLLEGE,

Wilmington, Ohio, for Appellants. Richard N. Coglianese, Holly J. Hunt, OFFICE OF THE

ATTORNEY GENERAL, Columbus, Ohio, Jeffrey A. Stankunas, Mark D. Landes, ISAAC,

BRANT, LEDMAN & TEETOR, Columbus, Ohio, Victor T. Whisman, OFFICE OF THE

PROSECUTING ATTORNEY FOR THE COUNTY OF MONTGOMERY, Dayton, Ohio, Anita

L. Davis, SUMMIT COUNTY PROSECUTOR’S OFFICE, Akron, Ohio, David Todd Stevenson,

HAMILTON COUNTY PROSECUTING OFFICE, Cincinnati, Ohio, for Appellees.

MARTIN, J., delivered the opinion of the court, in which COLE, J., joined. GILMAN, J.

(pp. 32-46), delivered a separate dissenting opinion.

1

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 2

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. The plaintiffs are African-American and

Caucasian voters residing in Hamilton, Montgomery, Sandusky, and Summit Counties in Ohio.

They filed their complaint on October 11, 2002 alleging that: (1) the use of unreliable, deficient

voting equipment, including the punch card ballot, in some Ohio counties but not other counties

violates the Equal Protection Clause of the Fourteenth Amendment; (2) the use of error prone voting

equipment deprives voters of their due process right to have their votes counted accurately; and (3)

the use of punch card voting systems in Hamilton, Montgomery, and Summit Counties has a

disparate impact on African-American voters in violation of Section 2 of the Voting Rights Act of

1965. The plaintiffs sought declaratory and injunctive relief prohibiting the defendants from: (1)

continuing to allow the use of “non-notice” and deficient punch card and optical scan voting

equipment in some Ohio counties while using more reliable voting equipment in other counties; (2)

using non-notice punch card voting equipment in Hamilton, Montgomery, and Summit Counties;

and (3) using non-notice optical scan voting systems in Sandusky County.

On December 14, 2004, the district court rejected the plaintiffs’ claims and granted summary

judgment in favor of the defendants. Some commentators have suggested that these types of voting

rights challenges are taking us into a brave new world. Others suggest that they are simply

variations of old challenges. Regardless of the proper characterization, we find ourselves bound by

Supreme Court precedent, and therefore, with regard to the plaintiffs’ claim under the Equal

Protection Clause, we REVERSE the district court’s judgment. With regard to the plaintiffs’ claim

under the Voting Rights Act, we VACATE the district court’s judgment and REMAND for

proceedings consistent with this opinion.

I.

A. Background Information on Voting Technology

Ohio law empowers the Secretary of State to certify voting equipment. Ohio Rev. Code

§ 3506.15.1 The Secretary has certified two general types of equipment: (1) “Notice” equipment

such as Digital Recording Electronic (DRE) and precinct-count optical scan equipment that prevent

overvotes (when a voter votes for more than the permissible number of candidates for a given office)

and warn voters when they are casting undervotes (when a voter does not vote in a particular race

or votes for fewer candidates than is permissible for a given office) — together, overvotes and

undervotes are referred to as “residual votes”; and (2) “Non-notice” equipment such as punch card

and central-count optical scan equipment that do not provide notice of and the opportunity to correct

residual votes. In the 2000 general election, approximately 72.5% of Ohio voters used non-notice

equipment and 27.5% used notice equipment.

In the 2000 general election, the most frequently used equipment in Ohio was the Votomatic

punch card, a non-notice system that relies on a ballot card with pre-scored, square perforations or

“chad” that correspond to the names of the candidates listed in an accompanying booklet. Names

of candidates or other identifying information for ballot measures do not appear on the actual ballot.

The punch card system does not provide independent notice of an overvote or undervote. A vote

1

The Ohio Secretary of State has already embarked on a campaign to replace both punch card and central count

optical scan machines, but as of the November 2005 elections, has not entirely done so. Moreover, the Help America

Vote Act of 2002 requires states who choose to receive federal funds under the Act to discontinue use of punch card

systems by 2006.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 3

is recorded by the machine when light passes through the detached holes. Problems with the

machines can cause “hanging chad” that remain attached to the ballot by one, two, or three corners;

“pierced chad” that are penetrated by the stylus but not dislodged from the ballot; and “dimpled

chad” that are dented but not penetrated or dislodged. Because of these inherent chad problems,

light often cannot pass through the holes and a vote is not recorded. Problems inherent in the punch

card machines are sometimes caused by the build up of chads which may make it difficult or

impossible to cleanly punch the card and record a vote.

Optical scan systems resemble answer sheets used in standardized testing. The voter is given

a ballot listing the names of all candidates and ballot initiatives and either uses a pencil to darken

the circle next to the preferred candidate or draws a straight line connecting two parts of an arrow.

Optical scan systems can be either precinct-count systems, which enable voters to scan the ballot

at the polling place thereby providing independent notice of and an opportunity to correct residual

votes, or central-count systems, which do not provide independent notice or the opportunity to

correct mistakes.

Electronic DRE machines come in several varieties, but most often resemble automated teller

machines or ATMs used at banks. Voters either touch the name of the preferred candidate on the

screen or press a button that corresponds to the preferred candidate. All forms of DRE technology

currently used in Ohio make it impossible to overvote for the same office or ballot initiative. DRE

systems can also be programmed to warn voters if their ballots contain undervotes. DRE systems

(like precinct-count optical scan systems), therefore, provide independent notice of residual votes.

In the 2000 general election, sixty-nine of eighty-eight Ohio counties used punch card

ballots. Eleven counties used optical scan equipment, six used electronic equipment, and two used

automatic or “lever” voting machines. These systems utilize different methods of reading and

counting votes. Some of the systems allow voters to check their ballots for residual votes. For

example, one county and part of another county utilized precinct-count optical scan equipment, and

six others use electronic voting equipment that allows a voter to verify their ballot on a screen before

the final ballot is cast. Most systems, however, including the ones operated by the four county

defendants, scan and count ballots at a central location after the polls have closed. Thus, in total,

eighty-one of eighty-eight Ohio counties used non-independent-notice equipment — voting

technology that does not provide a voter with notice from the voting device that a problem might

exist before the ballot is finally cast — in the 2000 general election.

Only three counties collected statistics on overvotes — Hamilton County, which had 2,916

overvotes, Summit County, which had 1,470 overvotes, and Montgomery County, which had 2,469

overvotes. This is a total of 6,855 overvotes in those three counties, which represents approximately

34% of the total residual votes cast in those counties. Franklin County used notice technology and

there were zero overvotes.

B. The Statistical Evidence

The plaintiffs’ expert, Dr. Martha Kropf, testified regarding estimates of intentional and

unintentional undervoting based on data collected by National Elections Studies and the Voters

News Survey in exit polls and surveys in presidential elections between 1980 and 1996. Kropf

testified that intentional undervoting in presidential elections is a relatively rare event that is

estimated to involve between .23% and .75% of all residual votes. Dr. Kropf concluded that when

levels of undervoting exceed this threshold and vary by equipment it is probable that they resulted

from unintentional undervoting that is associated with problems of the punch card ballot. She also

found no difference between African-American and non African-American voters in levels of

intentional undervotes. Kropf measured the performance of voting equipment by examining

presidential and U.S. Senate races at the top of the ballot because these are statewide elections where

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 4

all voters face the same candidates, and media coverage, levels of candidate competition, and voter

mobilization are relatively uniform. Kropf reported an overall statewide residual vote rate of 2.29%

for punch card systems and 2.14% for central-count optical scans. That is, voters in punch card

counties are approximately four times as likely not to have their votes counted as a voter using

reliable electronic voting equipment. In some counties specific precincts encountered more severe

problems with residual voting. In Akron City Precinct 3-F the residual vote rate was 15% and in

Dayton City’s 14th Ward Precinct C the residual vote rate was 17%.2 In addition, the counties in

Ohio experiencing the highest percentage of residual votes in the 2000 presidential election were

those in which voters used punch card technology while the counties experiencing the lowest

percentage of residual votes used other technology. The twenty-nine counties in Ohio with the

highest residual vote percentages were all counties that used punch card machines; the seven

counties with the lowest residual vote percentages were all counties that did not use punch card

machines as their primary voting system.

Roy Saltman, formerly of the National Bureau of Standards and the author of two federal

studies on the use of computers in vote tallying testified that his studies “demonstrate that punch

cards are inherently fragile, and they become less stable when ballots are handled or manipulated

or sent through a reader, resulting in overvotes, undervotes, and inconsistent vote tabulations.”

Saltman explained that lost votes are not attributable solely to voters’ failure to follow instructions.

According to Saltman, “[w]hen the ballot is then handled or manipulated or sent through a reader,

it is more likely that additional chads will be dislodged and fall out. And if that happens, the votes

indicated on the ballot are changed because the presence of holes indicates votes.” Dana Walch,

Director of Election Reform for the Ohio Secretary of State’s Office, confirmed the plaintiffs’

evidence that there is “a higher residual vote rate in punch card counties than in . . . counties with

other types of voting technology.” Walch further testified that problems with the punch card ballots

“were the result of some physical failure of the ballot or voter error.” The record also includes

letters from Tim Burke, the Chairman of the Board of Elections in Hamilton County, which state

that:

While I continue to believe that the punch card system functions reasonably well for

the price, it does have faults that the electronic machines do not have. I believe that

the chad problem is a very small part of our problem here in Hamilton County. It

does exist though. In fact, it is an inherent part of the punch card system. On the

other hand, chads are totally eliminated with electronic systems.

Another letter authored by Burke to U.S. Senator Mike DeWine stated that:

Having looked closely at the punch card system of voting we use here in Hamilton

County, I am convinced that this outdated technology is having a disparate impact

in depriving a significant number of voters of having their electoral choices

given. . . . Newer technology, particularly the touch screen voting systems, provide

both a more accurate count and prevent a voter from [overvoting].

Finally, a third letter from Burke stated that:

I am not as confident that our punch card voting system tells us with precise accuracy

the number of votes any particular individual received or should have received if the

intent of the voter had been properly accounted for. . . . In the punch card system you

can and it is objectively provable that hundreds and hundreds of people lose their

vote each year.

2

The 2000 presidential election in Ohio was decided by a margin of 3.51%.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 5

In response to this evidence, the district court acknowledged that “running the punch card ballots

repeated times through the counting machinery will result in different results.”

The Caltech MIT Voting Technology Project report — a joint venture between the two

institutions to study, in part, the reliability of existing voting equipment — which is referenced

throughout the record, is also informative. As the report notes, that “[i]f voting equipment has no

effect on the ability of voters to express their preferences, then the residual vote should be unrelated

to machine types.” See Caltech-MIT Voting Technology Project, Residual Votes Attributable to

Technology: An Assessment of the Reliability of Existing Voting Equipment (Version 2: March 30,

2001), available at http://www.vote.caltech.edu (last accessed April 1, 2006). The report concluded

that the error rate from punch cards is 50 percent higher than other technologies and that the pattern

holds up when “holding constant turnout, income, racial composition of counties, age distribution

of counties, literacy rates, the year of a shift in technology, the number of offices and candidates on

the ballot, and other factors that operate in a county or in a particular year.” Report at 22. In

conclusion, the report stated that “[t]he incidence of such residual votes with punch card methods

. . . is forty to seventy percent higher than the incidence of residual votes with the other

technologies,” Report at 17, and cautioned that “[i]f election administrators wish to avoid

catastrophic failures, they may heed th[is] warning . . . Stop using punch cards,” Report at 11.

Defendants’ expert Dr. John Lott examined the performance of voting technology across

three election cycles, 1992, 1996, and 2000, in the presidential, Congressional, Ohio Senate, and

Ohio House elections. His findings for the presidential and U.S. Senate elections mirror Kropf’s in

the 2000 election. Lott reported an overall statewide residual vote rate of 2.4% for punch card

systems.

Dr. Lott’s report stresses findings from the down-ballot contests — contests listed below the

presidential candidates farther down the ballot — that were not uniform across the state and included

non-competitive and uncontested elections. The experts on both sides appear to agree that the most

likely explanations for the fall-off in down-ballot voting are that voters deliberately choose not to

vote or that elections were not competitive. Lott’s report does not include specific findings on

overvotes. Further, the defendants’ experts made no effort to distinguish intentional from

unintentional undervoting in the down-ballot elections. Lott also admitted that a review of the

literature revealed that no other major scholars have agreed with his findings regarding the relevance

of analyzing non-uniform down-ballot races.

The State’s Help America Vote Act report also provides evidence of the problem of deficient

electoral technology. At the outset, the report notes that “[p]ublic confidence in the accuracy of

punch card voting systems has been seriously undermined.” Thus, “Boards of election should

upgrade their voting systems to new, more trustworthy technology.” Additionally, “[t]hese goals

demand immediate attention, or our state runs the risk of repeating the problems of our nation’s most

recent presidential election — and suffering irreparable damage to the most important and basic

concepts of democracy.” Regarding the deficient technology currently in use throughout the State,

the report stated that:

While the Secretary of State notes that punch-card voting is not explicitly prohibited

under the Help America Vote Act, other requirements of the Act make it impractical

to use punch card voting as a primary voting device in the state. In a study of ‘over’

and ‘under’ voting in Ohio, it was clearly demonstrated that punch-card voting was

unreliable to the extent [that] votes cast by thousands of Ohioans were not being

counted in the final election tabulation.”

(Emphasis added). Additionally, the report stated that:

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 6

As election officials, if we know voters are disenfranchised and that legitimately cast

ballots are being discounted, we have not only a moral obligation to immediately

embrace a solution, but a legal obligation to find a remedy and enact measures to

prevent that from happening. If even one voter is denied the right to vote, we are

obligated, by law, to determine the cause and forge a solution. The evidence is

overwhelming that thousands of Ohio voters have been disenfranchised by

antiquated voting equipment and that many thousands have lost confidence in the

reliability and accuracy of voting devices currently in use in most of Ohio’s 88

counties.

(Emphasis added).

Finally, in response to the legislature’s slow response to the electoral problems, the Secretary

of State wrote a letter stating that “the possibility of a close election with punch cards as the state’s

primary voting device invites a Florida-like calamity.”

C. The Plaintiffs’ Voting Rights Act Claim

On their Voting Rights Act claim, the plaintiffs alleged that the punch card system used in

Hamilton, Montgomery, and Summit Counties produces a higher residual vote rate for African-

American voters than for white voters. The plaintiffs presented regression analysis that the

correlation between overvoting and the percentage of African-American3 voters in a given precinct

in Hamilton County was .517 and in Summit County it was .682. The plaintiffs’ experts

characterized these correlations as “strong.” In Montgomery County, where only data of overvotes

mixed with undervotes was available at the precinct level, there was a smaller, but nevertheless

“strong” .440 correlation.

The plaintiffs’ expert, Dr. Richard Engstrom, analyzed the data based on methods of

statistical analysis approved by the Supreme Court and other federal courts in voting rights cases.

See e.g., Thornburg v. Gingles, 478 U.S. 30 (1986); Mallory v. Ohio, 173 F.3d 377 (6th Cir. 1999).

The three methods are homogeneous precinct analysis, ecological regression, and ecological

inference. Dr. Engstrom used all three methods and triangulated among them to verify that his

findings moved consistently in the same direction; the defendants’ expert did not use any of these

methods. Dr. Engstrom concluded that: (1) African-Americans in Hamilton County overvoted at

a rate seven times higher than non African-Americans; (2) in Summit County, African-Americans

overvoted at a rate nine times higher than non African-Americans; and (3) in Montgomery County

(where only combined over and undervote statistics are available on a precinct basis), African-

Americans had a residual voting rate 2.5 times that of non African-Americans. In contrast to the

three punch card counties, Franklin County had no overvotes because it used DRE machines that

prevent overvoting.

Based on this information, Dr. Engstrom testified that punch card equipment interacts with

socioeconomic conditions, resulting in statistically significant disparities between the levels of

residual voting among African-American and non African-American voters.

3

Regression coefficients measure the strength of association between two variables. They range from –1.0 (a

perfectly inverse relationship), through 0 (no relationship), to +1.0 (a perfect relationship). HUBERT M. BLALOCK, JR.,

SOCIAL STATISTICS 396-97 (2d ed. 1979).

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 7

D. The Defendants’ Responses

The defendants contend that the plaintiffs did not provide factual evidence to prove a

violation of the Constitution or Voting Rights Act. With heavy emphasis on the plaintiffs’

stipulation that they were not denied physical access to the polls, the defendants seem to allege that

the plaintiffs were not denied the right to vote. State Defendant’s Br. at 8. The defendants attack

the plaintiffs’ expert, Martha Kropf, who testified that intentional undervoting is rare, based on the

fact that she relied exclusively on exit polls commissioned by the National Election Survey and the

Voters News Service. They further point out that in the 1988 election, the National Election Survey

determined that between 3-5% of those who claimed to have voted had no record of actually voting

in the election. Thus, according to the defendants, the data the plaintiffs relied on consistently over-

reports voter turnout — thereby inflating the residual vote statistics. The defendants also criticize

the plaintiffs for not examining the voting results of the entire state and instead focusing on

Hamilton, Sandusky, Summit, and Montgomery Counties. The defendants further claim to poke

holes in the plaintiffs’ theory by pointing out that the plaintiffs’ own study shows that African-

Americans using punch card technology in Hamilton County had a lower residual vote rate than non

African-Americans using the punch card technology in Summit County.

The defendants also point to their expert, Dr. John Lott, who examined the 1992, 1996, and

2000 presidential elections and down-ballot races such as U.S. Senate, U.S. Congress, state

legislature races, and local races. Dr. Lott found that punch cards outperformed electronic machines

in congressional races, that punch cards reliability improved for down-ballot races relative to other

technologies, and that punch cards produced fewer non-voted ballots for 1992, 1996, and 2000 races

than either electronic machines or lever machines and produced virtually the same results as optical

scan machines.

The defendants also rely on Dr. Herb Asher’s findings that precincts with a higher

concentration of poverty had a residual vote rate higher than average in Ohio. Thus, Dr. Asher

pointed to race, education, and poverty as the cause. Dr. Asher also pointed to Appalachian counties

where the population is less than one percent African-American and concluded that because there

is a residual vote rate in those counties, education and income levels are contributing factors and one

factor alone — race — cannot explain everything.

E. The District Court’s Opinion

Prior to the trial, the district court denied the plaintiffs’ motion for class certification. They

appeal this decision. The district court then conducted a four-day bench trial and found in favor of

the defendants. At the outset, the district court laid out the parties’ arguments — it noted that

according to the plaintiffs’ expert, Dr. Kropf, the residual vote rate was 2.29% for punch cards,

1.15% for precinct-count optical scan, 1.04% for lever technology, and 0.94% for DRE technology.

The defendants’ expert produced similar results: 2.4% for punch cards, 2.0% for optical scan, 1.4%

for level technology, and 1.0% for DRE technology. Based on these figures, the plaintiffs’ alleged

that punch cards and central-count optical scan technology (but not lever, precinct-count optical

scan, or DRE technology) violate the Equal Protection and Due Process clauses.

Citing this Court’s decision in Mixon v. NAACP, 193 F.3d 389 (6th Cir. 1999), the district

court determined, in a footnote, that rational basis is the appropriate standard for evaluating the

voting systems. The footnote concluded by stating: “However, if the Court were to apply strict

scrutiny, the Court’s ruling would be the same.” The court then stated that “[t]he primary thrust of

this litigation is an attempt to federalize elections by judicial rule or fiat via the invitation to this

Court to declare a certain voting technology unconstitutional and then fashion a remedy. This Court

declines the invitation.” According to the district court, determination of the voting process has

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 8

always been left to the legislative branch, and “subject to constitutional amendment, that is where

the determination should remain.”

The court went on to state that “[t]he use of the punch card voting technology is neither

confusing nor difficult to operate.”4 Then, taking estimates for intentional undervoting into account

and multiplying it by the residual vote rate across the state, the district court concluded that:

Viewing the plaintiffs’ case in a light most favorable to them, leads to the conclusion

that seven to thirteen voters out of 1000 [i.e., 0.7% to 1.3%] using punch card

technology accidentally failed to record a vote in the year 2000 in the presidential

election. Such a de minimis conclusion, assuming arguendo that it is justified, fails

to prove 5a constitutional violation, either on a Due Process or Equal Protection

analysis.

Regarding the African-American plaintiffs’ Voting Rights Act claim, the district court found

that it “fail[s] because their alleged injury does not amount to a vote denial under § 2 of the Voting

Rights Act.” The court noted that plaintiffs can bring vote denial or vote dilution claims under the

Act, but found that the plaintiffs brought only a vote denial claim and that the plaintiffs admitted that

they were not denied physical access to the polls. Because, according to the district court, “[a] vote

denial arises when a state or municipality employs a ‘practice or procedure’ that results in the

‘actual’ denial of the right to vote on account of6race,” see 42 U.S.C. § 1973(a), the plaintiffs did not

bring a cognizable Voting Rights Act claim. The court stated that: “When coupled with the

previously referenced de minimis affects of the punch card ballots, these facts do not allow this

Court to conclude that an ‘actual’ denial of the right to vote on account of race occurs.”

Finally, the court concluded that “the operation of different voting systems by different

counties within the same state does not amount to a violation of the Equal Protection Clause.”

Relying heavily on Justice Souter’s dissenting opinion in Bush v. Gore, 531 U.S. 98, 134 (2000)

(Souter, J., dissenting), the district court concluded that states may freely use a variety of different

voting technologies without running afoul of the Equal Protection Clause. Further, the court

concluded that the defendants have a rational basis for continuing to utilize punch card technology

in that it is cost effective and there are security concerns with electronic technology.

4

The court also later found that “[t]o label the punch card voting technology a non-notice system is to ignore

the reality that the careful voter has every opportunity to scrutinize his or her ballot after removal from the voting tray

to determine if a mistake has been made in the context of an undervote or an overvote or a mistaken vote and to request

a new ballot in the event of a recognized mistake.”

5

The district court’s generalized state-wide residual vote average did not take into account the extent of the

plaintiffs’ statistics. For example, the rate in Sandusky County, which used central-count optical scan equipment was

2.64%. Some examples of the residual vote rate for counties using punch cards were 3.19% for Summit County and

2.78% for Montgomery County. Within these counties, specific precincts had higher residual rates: 15% for Akron City

Precinct 3-F and 17% for Dayton City 14th Ward Precinct C.

6

The district court did not address the plaintiffs’ statistical evidence in the challenged counties. According to

the plaintiffs’ complaint, in the 57 precincts in Summit County where African-American voters comprise the majority,

the average residual vote rate was 6.7%. In the 567 precincts where white voters comprise the majority in Summit

County, the average residual vote rate was 2.9%.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 9

II.

A. Standing

Before turning to the merits of the case, we address the defendants’ argument that the

plaintiffs lack standing. The district court stated that it “is of the view that the defendants have the

better argument on the issue of standing, but declines the invitation to dismiss the case on standing.”

The district court erred in not determining whether the plaintiffs had standing. Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83, 94-95 (1998) (courts have an obligation to satisfy

jurisdiction, including standing, even though the parties are prepared to concede it). The defendants

argue that: (1) because one of the four plaintiffs did not vote in the previous election, she suffered

no injury in fact, and (2) no plaintiff has standing to bring suit against Hamilton County, because

none of the four voters have ever lived or voted in Hamilton County.

We reject the defendants’ arguments and conclude that the plaintiffs have standing to bring

suit against the State of Ohio and each of the four counties. It has been stipulated that at least one

of the plaintiffs, all of whom are registered voters, resides in each defendant-county. Furthermore,

the plaintiffs’ standing does not depend on any injury suffered in the previous election, but rather

on the probability that their votes will be miscounted in upcoming elections.

In Bryant v. Yellen, 447 U.S. 352 (1980), the Supreme Court held that a group of farm

workers had suffered an injury sufficient to confer standing based on an increased likelihood that

land would be available for sale if a section of the Boulder Canyon Project Act had been applied to

160 acres of land in Imperial Valley, California. The Supreme Court concluded that the circuit court

was correct in finding standing on this basis, even though the plaintiffs could not establish that they

would be able to purchase land if the section of the Act were applied. Id. at 366-67. The farm

workers did in fact have standing, because it was unlikely that any of the land would be available

for sale without the applicability of the section of the Act, and likely that the land would be available

at less than market prices after the application of the Act. Id. at 368. Byrant indicates that the

increased probability of a future injury is sufficient to confer Article III standing.

The Supreme Court restated the elements of standing in Lujan v. Defenders of Wildlife, 504

U.S. 555 (1992). There, the Court emphasized that in order to have standing, a plaintiff must have

suffered an injury in fact, which must be concrete and particularized, and actual or imminent, as

opposed to conjectural or hypothetical. Id. at 560. Lujan, however, does not overrule Bryant. In

fact, after Lujan, courts have continued to recognize that the increased risk of harm constitutes an

injury sufficient to support standing. For example, although ultimately denying him relief, the

Supreme Court considered the merits of the claims brought by a plaintiff who had been exposed to

asbestos, but had not yet manifested any symptoms of asbestos-related disease. Metro-North

Commuter R. Co. v. Buckley, 521 U.S. 424 (1997). This Court has also recognized in the medical

context that a risk of injury in the future can be grounds for standing. See Sutton v. St. Jude S.C.,

Inc., 419 F.3d 568, 573-74 (6th Cir. 2005) (finding standing based on an increased risk of harm

requiring medical monitoring); but see Natural Resources Def. Council v. EPA, — F.3d —, 2006

WL 538183 (D.C. Cir. March 7, 2006).

In the voting context, this Court and others have recognized that voters can have standing

based on an increased risk that their votes will be improperly discounted. In Sandusky County

Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004) (per curiam), this Court held that

the plaintiffs had standing to bring a claim on behalf of voters alleging that the Secretary of State’s

issuance of provisional ballots in Ohio elections violated the Help America Vote Act. The Act

allowed voters to cast provisional ballots in those instances where their names could not be located

on the list of qualified voters. Id. at 569. The Secretary of State issued a directive that would

prohibit voters from casting provisional votes unless the poll worker was able to confirm that the

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 10

voter was eligible to vote in that specific precint. Id. at 571. On behalf of their members, i.e. voters,

plaintiffs alleged that the directive violated the Act because the directive would allow “poll workers

to withhold a provisional ballot from anyone who is not — according to the poll worker’s

on-the-spot determination at the polling place — a resident of the precinct in which the would-be

voter desires to cast a provisional ballot.” Id.

This Court held that the plaintiffs had standing, even though they were unable to name

specific voters who would seek to vote at polling places that would be deemed to be wrong by

voters:

Appellees have not identified specific voters who will seek to vote at a polling place

that will be deemed wrong by election workers, but this is understandable; by their

nature, mistakes cannot be specifically identified in advance. Thus, a voter cannot

know in advance that his or her name will be dropped from the rolls, or listed in an

incorrect precinct, or listed correctly but subject to a human error by an election

worker who mistakenly believes the voter is at the wrong polling place. It is

inevitable, however, that there will be such mistakes. The issues Appellees raise are

not speculative or remote; they are real and imminent.

Id. at 574. So too here, the plaintiffs are unable to articulate which voter will be harmed in the future

by deficient equipment.7 It is inevitable, however, that errors have been made and will be made in

the future. As the district court found, “[a] flaw in the punch card ballot is its fragile nature and the

fact that running the punch card ballots repeated times through the counting machinery will result

in different results.” The claims of the plaintiffs here are not speculative or remote, but real and

imminent.

The plaintiffs here have alleged an injury in fact sufficient to confer Article III standing. The

increased probability that their votes will be improperly counted based on punch-card and central-

count optical scan technology is neither speculative nor remote.

B. Mootness

The defendants also claim that there is no case or controversy because of the Help America

Vote Act of 2002. Pub. L. No. 107-252, 116 Stat. 1666 (codified at 42 U.S.C. § 15304). Section

102 of the Act requires States receiving federal funds under the Act to discontinue the use of punch

card systems in time for the first federal election of 2006. The Act also contains a section on voting

system standards. 42 U.S.C. § 15481. The Act requires independent notice technology, the

opportunity to change the ballot before it is cast, and an FEC compliant error rate. Ohio has

declared its intentions to comply with the Act and thereby will receive federal funding under the Act.

Id.

The mootness doctrine is grounded in Article III’s “case or controversy” requirement. Thus,

as mootness is a jurisdictional requirement, courts lack judicial power to entertain and decide moot

cases. See Los Angeles County v. Davis, 440 U.S. 625, 631 (1979) (“[A] case is moot when the

issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”

(quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). The standard for determining whether

a case has been mooted by the defendant’s voluntary conduct “is stringent: ‘A case might become

moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur.’ The ‘heavy burden of persua[ding]’ the court that the challenged

7

It is irrelevant that the plaintiffs in Sandusky County Democratic Party were organizations. “An association

has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own

right.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000).

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 11

conduct cannot reasonably be expected to start up again lies with the party asserting mootness.”

Laidlaw, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S.

199, 203 (1968)) (emphasis added). The State has asserted that its voluntary compliance with

HAVA is sufficient to moot the case. We disagree. Ohio’s voluntary compliance with the Act is

just that — voluntary. The State, should it wish to opt out of the Act’s demands, may do so at any

time and the only penalty is the return of a prorated amount of the federal funds in proportion to the

precincts not converted to acceptable technology. This is not the type of voluntary action that moots

a case, and in fact, is just the type of action that we have found does not carry the “heavy burden”

of demonstrating mootness. See e.g., Am. Canoe Ass’n v. City of Louisa Water & Sewer Comm’n,

389 F.3d 536, 543 (6th Cir. 2004) (defendants voluntary conduct failed to meet “stringent” test for

mootness); Johnson v. City of Cincinnati, 310 F.3d 484, 490 (6th Cir. 2002) (city’s assurance that

it no longer enforced the challenged ordinance deemed insufficient to moot case); Deja Vu of

Nashville v. Metro. Gov’t of Nashville & Davidson Co., 274 F.3d 377, 387 (6th Cir. 2001)

(amendment of challenged ordinance did not moot case). We now turn to the merits of the case.

III.

A. The Right to Vote

Voting is a fundamental right. See e.g., Reynolds v. Sims, 377 U.S. 533, 561-62 (1964)

(“Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society.”). For

more than a century the Supreme Court has acknowledged the fundamental nature of the right to

vote. See Yick Wo v. Hopkins, 118 U.S. 356, 371 (1886) (acknowledging “the political franchise of

voting” as “a fundamental political right”). “Especially since the right to exercise the franchise in

a free and unimpaired manner is preservative of other basic civil and political rights, any alleged

infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”

Reynolds, 377 U.S. at 562. Careful and meticulous scrutiny is necessary because even minor

infringements on the franchise can have reverberations in other contexts and throughout democratic

society. “A consistent line of decisions by [the Supreme] Court in cases involving attempts to deny

or restrict the right of suffrage has made this indelibly clear.” Id. at 554 (“Undeniably the

Constitution of the United States protects the right of all qualified citizens to vote, in state as well

as in federal elections.”); see also U.S. Const. amends. XV, XVII, XIX, XXIV, XXVI. For example,

all qualified voters have a constitutionally protected right to vote. Ex parte Yarbrough, 110 U.S.

651, 656 (1884). Citizens cannot be denied the right to vote outright. Guinn v. United States, 238

U.S. 347, 362 (1915); Lane v. Wilson, 307 U.S. 268, 274-75 (“The Fifteenth Amendment secures

freedom from discrimination on account of race in matters affecting the franchise,” and “nullifies

sophisticated as well as simple-minded modes of discrimination.”). Dilution of the right to vote may

not be accomplished by stuffing the ballot-boxes. Ex parte Siebold, 100 U.S. 371 (1879). Nor may

the right to vote be diluted by alteration of ballots or improper counting of ballots. United States

v. Classic, 313 U.S. 299, 315 (1941). In Classic, the Court stated that: “Obviously included within

the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast

their ballots and have them counted . . . This Court has consistently held that this is a right secured

by the Constitution.” Id. (emphasis added). Dilution of the right to vote through various techniques,

including racial gerrymandering, Gomillion v. Lightfoot, 364 U.S. 339, 345 (1960), and conducting

white primaries, Terry v. Adams, 345 U.S. 461, 469 (1953), likewise violate the Constitution due

to the effect of denying some citizens the right to vote. What is clear from all of the Supreme

Court’s voting rights cases is that “[t]he right to vote freely for the candidate of one’s choice is of

the essence of a democratic society, and any restrictions on that right strike at the heart of

representative government.” Reynolds, 377 U.S. at 555. The Supreme Court’s cases have also made

another principle unmistakable: “[T]he right of suffrage can be denied by a debasement or dilution

of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the

franchise.” Id.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 12

Nearly a year before Reynolds, in Gray v. Sanders, 372 U.S. 368, 381 (1963), the Supreme

Court held unconstitutional Georgia’s county unit system in statewide primary elections. The Court

found the system to be unconstitutional because it diluted the weight of votes cast by certain Georgia

residents based on where they lived. Id. at 379-80. The Court stated:

Once the geographical unit for which a representative is to be chosen is designated,

all who participate in the election are to have an equal vote — whatever their race,

whatever their sex, whatever their occupation, whatever their income, and wherever

their home may be in that geographical unit. This is required by the Equal Protection

Clause of the Fourteenth Amendment. The concept of ‘we the people’ under the

Constitution visualizes no preferred class of voters but equality among those who

meet the basic qualifications. The idea that every voter is equal to every other voter

in his State, when he casts his ballot in favor of one of several competing candidates,

underlies many of our decisions.

Id. at 379-80. The Court continued and concluded by stating that: “The conception of political

equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth,

Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote.” Id.

at 381.

Also, in Wesberry v. Sanders, 376 U.S. 1 (1964), the Court addressed the constitutional test

for determining the validity of congressional districting schemes and held that Equal Protection

requires substantial equality of population amongst the districts established by state legislatures for

the election of members to the United States House of Representatives. Id. at 18 (“While it may not

be possible to draw congressional districts with mathematical precision, that is no excuse for

ignoring our Constitution's plain objective of making equal representation for equal numbers of

people the fundamental goal for the House of Representatives. That is the high standard of justice

and common sense which the Founders set for us.”). The high standard establishes that: “No right

is more precious in a free country than that of having a voice in the election of those who make the

laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if

the right to vote is undermined.” Id. at 17.

The Reynolds Court also favorably cited Justice Douglas’s dissent in South v. Peters, 339

U.S. 276 (1950), where he stated that:

There is more to the right to vote than the right to mark a piece of paper and drop it

in a box or the right to pull a lever in a voting booth. The right to vote includes the

right to have the ballot counted. It also includes the right to have the vote counted

at full value without dilution or discount.

Id. at 279 (citations omitted); see also Reynolds, 377 U.S. at 562 (“And, if a State should provide

that the votes of citizens in one part of the State should be given two times, or five times, or 10 times

the weight of votes of citizens in another part of the State, it could hardly be contended that the right

to vote of those residing in the disfavored areas had not been effectively diluted.”). Vote dilution,

of course, while just as effective as an outright denial of the franchise, may be accomplished in many

ways, both intentionally and unintentionally, in a manner that does not immediately shock the senses

as would an outright denial. This is not a reason, however, to be any less cognizant of the Equal

Protection Clause implications. “One must be ever aware that the Constitution forbids sophisticated

as well as simpleminded modes of discrimination.” Reynolds, 377 U.S. at 563 (internal quotation

marks omitted).

Helpful to the analysis in Reynolds and favorably cited by the Court was Justice Black’s

dissent in Colegrove v. Green, 328 U.S. 549 (1946), where he stated that:

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 13

No one would deny that the equal protection clause would also prohibit a law that

would expressly give certain citizens a half-vote and others a full vote . . . [T]he

Constitutionally guaranteed right to vote and the right to have one’s vote counted

clearly imply the policy that state election systems, no matter what their form, should

be designed to give approximately equal weight to each vote cast. . . . Thus, a state

legislature cannot deny eligible voters the right to vote for Congressmen and the

right to have their vote counted. It can no more destroy the effectiveness of their vote

in part and no more accomplish this in the name of ‘apportionment’ than under any

other name.

Id. at 569-70 (emphasis added).

Additional cases are relevant to our decision. Harper v. Virginia State Bd. of Elections held

invalid a Virginia poll tax and declared that “a State violates the Equal Protection Clause of the

Fourteenth Amendment whenever it makes the affluence of the voter of payment of any fee an

electoral standard.” 383 U.S. 663, 666 (1966). To reach this conclusion, the Court noted that: “We

have long been mindful that where fundamental rights and liberties are asserted under the Equal

Protection Clause, classifications which might invade or restrain them must be closely scrutinized

and carefully confined.” Id. at 670.

Next, in Dunn v. Blumstein, 405 U.S. 330 (1972), the Court struck down Tennessee’s

durational residence statute. Applying strict scrutiny, the Court stated:

There is no need to repeat now the labors undertaken in earlier cases to analyze this

right to vote and to explain in detail the judicial role in reviewing state statutes that

selectively distribute the franchise. In decision after decision, this Court has made

clear that a citizen has a constitutionally protected right to participate in elections on

an equal basis with other citizens in the jurisdiction.

Id. at 336 (citations omitted). Thus, the law would be “unconstitutional unless the State can

demonstrate that such laws are necessary to promote a compelling governmental interest.” Id. at 342

(quotation omitted). Stated another way, “a heavy burden of justification is on the State, and [] the

statute will be closely scrutinized in light of its asserted purposes.” Id. at 343. The Court further

stated that laws “affecting constitutional rights must be drawn with precision . . . and must be

tailored to serve their legitimate objectives. And if there are other, reasonable ways to achieve those

goals with a lesser burden on constitutionally protected activity, a State may not choose the way of

greater interference.” Id. (internal quotations and citations omitted).

Somewhat more recently decided is Bush v. Gore, 531 U.S. 98 (2000),8 which reiterated long

established Equal Protection principles. Id. at 104 (“When the state legislature vests the right to vote

for President in its people, the right to vote as the legislature has prescribed is fundamental; and one

source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity

owed to each voter.”). Echoing long-revered principles, the Court emphasized that states, after

8

Of note, Bush v. Gore appears to be the first case where a court recognized the developing problem with

technology that we confront today. The per curiam opinion noted that the case “brought into sharp focus a common, if

heretofore unnoticed, phenomenon” — that nationwide an “estimated 2% of ballots cast do not register a vote for

President for whatever reason,” and that “punchcard balloting machines can produce an unfortunate number of ballots

which are not punched in a clean, complete way by the voter.” Bush, 531 U.S. at 104. We also note that the dissent

begins by criticizing our “reliance on the Supreme Court’s murky decision in Bush v. Gore.” Dis. Op. at 32. Murky,

transparent, illegitimate, right, wrong, big, tall, short or small; regardless of the adjective one might use to describe the

decision, the proper noun that precedes it — “Supreme Court” — carries more weight with us. Whatever else Bush v.

Gore may be, it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere

to it. More on this later.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 14

granting the right to vote on equal terms, “may not, by later arbitrary and disparate treatment, value

one person’s vote over that9 of another.” Id. at 104-05 (citing Harper v. Virginia Bd. of Elections,

383 U.S. 663, 665 (1966)). That is, the right to vote encompasses “more than the initial allocation

of the franchise. Equal protection applies as well to the manner of its exercise.” Id.

Equal Protection, therefore, requires “minimal procedural safeguards” such that there is “at

least some assurance that the rudimentary requirements of equal treatment and fundamental fairness

are satisfied.” Id. at 109.10 Echoing Dunn’s holding that “if there are other, reasonable ways to

achieve those goals with a lesser burden on constitutionally protected activity, a State may not

choose the way of greater interference,” 405 U.S. at 343, the Court held that “[t]he formulation of

uniform rules to determine intent based on these recurring circumstances is practicable and, we

conclude, necessary,” Bush, 531 U.S. at 106. Furthermore, the Court cautioned that “[i]t must be

remembered that ‘the right of suffrage can be denied by a debasement or dilution of the weight of

a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’” Id.

at 105 (quoting Reynolds, 377 U.S. at 555). And finally, the Court expressed its reluctance at having

to decide the issue, but asserted that “[w]hen contending parties invoke the process of the courts . . .

it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial

system has been forced to confront.” Id. at 111.

Last, contrary to the dissent’s argument, the Court’s decision in Burdick v. Takushi, 504 U.S.

428 (1992) does not require a different approach. In Burdick, the Court considered whether

Hawaii’s prohibition on write-in voting violated the First and Fourteenth Amendments. Id. at 430.

The Court began by noting that any election law will in some way “impose some burden upon

individual voters,” and, as a result, applying strict scrutiny to any claim tangentially related to the

right to vote would unnecessarily tie the hands of state officials seeking to regulate orderly elections.

Id. at 433. The Court did reassert that the right to vote is fundamental, but noted that from this

principle it does not follow that the “the right to associate [with a particular candidate] for political

purposes through the ballot [is] absolute.” Id. In Burdick, therefore, the Court found the burden to

be minimal and affecting only those voters failing to comply with Hawaii’s reasonable and non-

discriminatory election procedures for qualifying for a place on the ballot. Id. at 434-45. Thus,

unlike the instant case, where the technological burden is not within the control of the voters, any

burden in Burdick was the result of the voter’s failure to timely identify a candidate and seek to

9

Within this framework, the Court then inquired “whether the recount procedures the Florida Supreme Court

has adopted [whereby it instructed that the intent of the voter be determined] are consistent with its obligation to avoid

arbitrary and disparate treatment of the members of its electorate.” Bush, 531 U.S. at 104. The Court answered that

“[t]he recount mechanisms implemented . . . do not satisfy the minimum requirement for nonarbitrary treatment of voters

necessary to secure the fundamental right.” Id. Thus, standards for counting votes that “might vary . . . from county to

county” and sometimes from within a single county, violate the Equal Protection Clause. Id. at 106. Quite correctly,

at the end of the per curiam opinion, the Court noted that its “consideration is limited to the present circumstances, for

the problem of equal protection in election processes generally presents many complexities.” Id. at 109. The Court’s

substantial voting rights precedent demonstrates as much. The facts change, but the principles and the fundamental nature

of the right to vote remain the same.

10

Several of the dissenting Justices interpreted the majority opinion to call into question additional state

practices and procedures. For example, “[I]n a system that allows counties to use different types of voting systems,

voters already arrive at the polls with an unequal chance that their votes will be counted. I do not see how the fact that

this results from counties’ selection of different voting machines rather than a court order makes the outcome any more

fair.” Id. at 552 (Breyer, J., dissenting). Likewise, scholars have speculated on Bush’s impact. See e.g., Edmund S.

Sauer, “Arbitrary and Disparate” Obstacles to Democracy: The Equal Protection Implications of Bush v. Gore on

Election Administration, 19 J.L. & Pol. 299, 299 (Oct. 2003) (noting that the Supreme Court’s holding in Bush v. Gore

— “that a state must adopt adequate uniform standards in conducting a manual recount of ballots in a presidential

election — can be applied in other contexts, rendering some local government practices vulnerable to constitutional

challenge.”). Nevertheless, we recognize that seven of the justices agreed that the recount ordered by the Florida

Supreme Court violated the Equal Protection Clause; the disagreement was over the remedy.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 15

place such person on the ballot. Id. at 436-37 (“Consequently, any burden on voters’ freedom of

choice and association is borne only by those who fail to identify their candidate of choice until days

before the primary. But in Storer v. Brown, [415 U.S. 724, 736 (1974)] we gave little weight to ‘the

interest the candidate and his supports may have in making a late rather than an early decision to

seek independent ballot status.’”). Finally, noting that compliance with Hawaii’s procedures

afforded “adequate ballot access,” the State’s ban on write-in voting was only a “limited burden on

voters’ rights to make free choices and to associate politically through the vote.” Id. at 438-39. We

have little problem dismissing the relevance of Burdick, the context of which is a voter’s desire to

vote for a write-in candidate after failing to properly comply with the state’s procedures for getting

that candidate on the ballot in the first place. The voter in Burdick had access to the ballot on equal

terms with the rest of the electorate. The Supreme Court viewed the burden in Burdick as little more

than a minor burden on those who waited until “the eleventh hour,” id. at 439, to decide whom to

vote for or the interest in recording a “protest vote,” id. at 438. In this case, however, through no

failure on their parts, Ohio voters facing deficient technology approach the ballot in a position

unequal from the portion of the electorate using adequate technology. As the State’s HAVA report

stated: “The evidence is overwhelming that thousands of Ohio voters have been disenfranchised by

antiquated voting equipment.” The burden on the franchise in Burdick pales in comparison to the

burden in this case.

The dissent’s reliance on Burdick, therefore, is misplaced. First, “[i]n Burdick, the plaintiffs’

First Amendment rights to ballot access were at issue,” Southwest Voter, 344 F.3d at 899, not the

plaintiffs’ right to vote, which is at issue in this case. Second, the dissent’s claim that “[f]ederal

courts applying the Burdick framework have evaluated challenges to various state voting regulations

under a rational-basis standard of review” Dis. Op. at 35, is correct, but misses the point. Burdick

was about a candidate’s access to the ballot; it was not a case that addressed a voter being denied

an equal chance to have her vote counted. Each of the cases cited by the dissent, employing

Burdick’s11framework, are likewise cases having little to nothing to do with the exercise of the

franchise. Moreover, the dissent adopts an overly narrow interpretation of the “right to vote” and

ignores the Supreme Court’s statement in Bush that the right to vote encompasses “more than the

initial allocation of the franchise. Equal 12

protection applies as well to the manner of its exercise.”

Bush, 531 U.S. at 104 (emphasis added). We also note that the case before us is more similar to

11

The dissent cites Werme v. Merrill, 84 F.3d 479, 483 (1st Cir. 1996) (upholding under rational basis review

a New Hampshire law that prevented a member of the Libertarian Party from serving as a ballot clerk on Election Day).

Whom a state authorizes to serve as a ballot clerk is a far cry from a challenge alleging that a denial of the right to vote.

Moreover, the dissent cites Donatelli v. Mitchell, 2 F.3d 508, 515 (3d Cir. 1993), which upheld, under rational basis

review, a state reapportionment plan that temporarily assigned a state senator to a different district. The dissent goes

on to state that “[t]hese cases from our sister circuits serve as a reminder that, the tone of the majority opinion

notwithstanding, many state and local voting regulations are evaluated under the rational-basis standard of review.” Dis.

Op. at 35. These cases, however, do not support the dissent’s claim that rational basis review applies to this claim; they

merely support the proposition that some claims involving election law are reviewed under the rational basis standard.

Likewise, the law review article that the dissent relies so heavily upon, specifically refutes the claim that rational basis

would apply to review a case involving disparate technologies. When discussing the law that would apply to a challenge

based on disparate technologies, Professor Hasen concludes that “Bush v. Gore appears to mandate strict scrutiny, not

application of rational basis review.” Hasen, Bush v. Gore, 29 Fla. St. U. L. Rev. at 395.

12

Additionally informative, but not dispositive of the constitutional question, is how Congress has defined the

“right to vote” under the Voting Rights Act. Under 42 U.S.C. § 1973l(c)(1), the Voting Rights Act provides:

The terms “vote” or “voting” shall include all action necessary to make a vote effective in any

primary, special, or general election, including, but not limited to, registration, listing pursuant to this

subchapter, or other action required by law prerequisite to voting, casting a ballot, and having such

ballot counted properly and included in the appropriate totals of votes cast with respect to candidates

for public or party office and propositions for which votes are received in an election.

(Emphasis added).

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 16

Bush where the Court did not find it necessary to address or cite Burdick when applying a

heightened standard of review.

Zealous protection of the right to vote has been the norm. Few rights have been so

extensively and vigorously protected as the right to vote. Its fundamental nature and the vigilance

in its defense, both from the courts, Congress, and through the constitutional amendment process,

stem from the recognition that our democratic structure and the preservation of other rights depends

to a great extent on the franchise. To that effect, from Yick Wo to Reynolds to Bush, Supreme Court

precedent is clear: we must apply strict scrutiny to the challenged voting practice at issue here.

Ending this section on the proper standard of review, we now briefly review other lower

courts treatment of similar voting rights challenges in recent years.13

B. Similar Equal Protection Challenges to Voting Technology

Relatively soon after the 2000 presidential election, the first case challenging the use of

certain voting technology as violative of the Equal Protection Clause was heard in the Central

District of California. The plaintiffs alleged that the use of punch card voting systems amounted to

vote denial in violation of the Fourteenth Amendment as well as a claim under the Voting Rights

Act. See Common Cause Southern Christian Leadership Conference of Greater Los Angeles v.

Jones, 213 F. Supp. 2d 1106, 1107-08 (C.D. Cal. 2001). The Secretary of State moved for judgment

on the pleadings and the district court denied the motion. Id. at 1108.

Like Ohio’s Secretary of State, California’s Secretary of State “has the power to publish a

list of voting systems from which counties may choose.” Id. at 1107. This list included punch card

systems which the plaintiffs alleged were less reliable than other listed systems, and therefore those

living in counties where the punch card system was used were substantially less likely to have their

votes counted in violation of the Fourteenth Amendment. Id. The plaintiffs also alleged that the

counties using punch card systems “have high racial minority populations in comparison with

counties using other voting systems” and therefore alleged a denial of the right to vote on the basis

of race under Section 2 of the Voting Rights Act. Id. at 1107-08.

The district court concluded that the plaintiffs alleged sufficient facts to survive a motion for

judgment on the pleadings under both strict scrutiny and rational basis review. Id. at 1109 (“Even

if the more lenient standard is ultimately applied by this Court, Plaintiff has alleged facts indicating

that the Secretary of State’s permission to counties to adopt either punch-card voting procedures or

more reliable voting procedures is unreasonable and discriminatory.”).

Regarding the Voting Rights Act claim, the court characterized the plaintiffs’ claim as racial

minorities being “disproportionately denied the right to vote because their votes are uncounted in

disporportionate numbers as a result of the voting mechanism that they are supplied.” Id. at 1110.

The court again denied the defendants’ motion to dismiss. Id. Following the decision, the parties

13

In response to the dissent, we are of course aware that some of these cases were reviewed on the pleadings

or on a motion to dismiss under Rule 12(b)(6). Coming from district courts and other circuits, they are not binding upon

us (as Supreme Court decisions are). These decisions do have, however, the power to persuade, and it would be

irresponsible not to consider their reasoning — both good and bad — simply because they are not binding. If we then

agree with their reasoning, we ought to apply it here. If we do not agree, then we should not adopt their reasoning. This,

of course, differs from Supreme Court decisions, such as Bush v. Gore, where we are bound to apply their reasoning

regardless of whether we agree with them, find them “murky,” Dis. Op. at 32, or believe that the Supreme Court issued

its decision with a “lack of seriousness,” Dis. Op. at 37 (quoting Richard L. Hasen, Bush v. Gore and the Future of Equal

Protection Law in Elections, 29 Fla. St. U. L. Rev. 377, 391 (2001)).

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 17

agreed to and the court entered a consent decree requiring that for the nine counties in California

using punch card technology convert to “other certified voting equipment” by March 2004. See

Common Cause v. Jones, No. 01-03470 SVW (RZX), 2002 WL 1766436 (C.D. Cal. Feb. 19, 2002),

enforced by, No. 01-03470 SVW (RZ), 2002 WL 1766410 (C.D. Cal. May 9, 2002).

In 2002, in a more comprehensive fashion, the district court for the Northern District of

Illinois addressed a similar claim. See Black v. McGuffage, 209 F. Supp. 2d 889 (N.D. Ill. 2002).

The court began by noting that many election problems have come to light in recent years. Id. at

891. The plaintiffs in Black made essentially the same claims now before this Court — that is,

claims under the Equal Protection and Due Process Clauses, as well as a claim for the minority

plaintiffs under Section 2 of the Voting Rights Act. Id. at 892 (“Plaintiffs allege that African

American and Latino voters are disproportionately forced to use — and are disproportionately

injured when they use — the challenged voting systems.”).

Like Ohio and California (and most other states), the counties in Illinois may choose from

several voting systems certified by the Illinois State Board of Elections. Id. Illinois jurisdictions

could choose from four technologies — precinct-count optical scan (with error notification), central-

count optical scan (without error notification), precinct-count punch card (with error notification)

and central-count punch card (without error notification) technologies. Id. Of the 110 local election

boards in Illinois, in the 2000 election, ninety-five boards used central-count punch card systems.

Id. Various residual vote rates were listed by the district court:

The average residual vote rate across Illinois, for ballots cast for president in the

November, 2000 presidential election, was approximately 3.85%. This rate varied

substantially among Illinois jurisdictions. [In] [j]urisdictions using optical scan

ballots with error notification the average residual vote rate was less than 1%. The

rates ranged from 0.32% in McHenry County to 1.07% in Franklin County. In

jurisdictions using punch card ballots without error notification the average residual

vote rate was more than 4%. For example, in Chicago, the rate was 7.06% citywide,

12.59% in the 12th ward, 12.4% in the 37th ward, and 36.73% in the 48th precinct

of the 29th ward. Similarly, the rate was 5.23% in suburban Cook County, 8.8% in

the Cicero Township of Cook County and 7.48% in Alexander County. The rate was

3.17% in Whiteside County, 2.48% in Will County, and 2.15% in Sangamon County.

In the three election jurisdictions which use optical scan ballots without error

notification the average residual vote rate was more than 4%. For example, the rate

was 10.88% in all of East St. Louis, but 22.30% in the 20th precinct of East St.

Louis.

Id. at 893. As in the instant case, based on various residual vote rates, the plaintiffs argued that

“individuals living in punch card jurisdictions have a greater statistical probability of not having

their votes counted . . . [and] that the counties with the punch card system have larger populations

of minorities than do counties using other voting systems, and thus use of those less accurate

machines has a disparate impact on minority voters.” Id. at 894.

The district court addressed the claim in the context of a 12(b)(6) motion to dismiss. The

court first rejected the defendants’ claims based on standing and mootness, id. at 894-96, and also

rejected the defendants’ 12(b)(6) claim as to the merits.

The court first addressed the plaintiffs’ claim under Section 2 of the Voting Rights Act of

1965. The court stated that “the Supreme Court has emphasized [that the Voting Rights Act] ‘should

be interpreted in a manner that provides the broadest possible scope in combating racial

discrimination.’” Id. at 896 (quoting Chisom v. Roemer, 501 U.S. 380, 403 (1991) (internal

quotations omitted)). Section 2(a) of the Act prohibits the use of any electoral practice of procedure

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 18

that “results in a denial or abridgement of the right of any citizen of the United States to vote on

account of race or color.” 42 U.S.C. § 1973(a). Section 2 broadly protects the franchise and

includes “all action necessary to make a vote effective” including “casting a ballot and having such

ballot counted properly.” 42 U.S.C. § 1973l(c)(1). Section 2(b) of the Act provides that an electoral

practice or procedure results in a violation of the franchise under section (a)

if, based on the totality of circumstances, it is shown that the political processes

leading to nomination or election in the State or political subdivision are not equally

open to participation by members of a class of citizens protected by subsection (a)

of this section in that its members have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of their

choice.

42 U.S.C. § 1973(b).

Based on these statutes, the district court in Black found that “[t]here are two statutory

elements to a claim under Section 2: (1) the use of an electoral ‘standard, practice or procedure,’ and

(2) a resulting diminution of the opportunity to [minority] voters ‘to participate in the political

process and to elect representatives of their choice.’” Id. at 896 (quoting 42 U.S.C. § 1973(a)-(b)).

The court then concluded that the plaintiffs’ complaint met this requirement by identifying an

electoral practice (“deficient ballot system”), and alleged that because of the deficient system, the

minority plaintiffs have less opportunity than other members of the electorate to participate in the

process and elect representatives of their choice. Id. at 897. Finding that the facts alleged could

demonstrate that the plaintiffs “participation in the political process could be significantly

diminished,” the district court denied the defendants’ motion to dismiss. Id.

The court then turned to the plaintiffs’ claim under the Equal Protection Clause. The Equal

Protection claim in Black, and in the instant case, is not that a classification has been drawn based

on race, but rather that “the counties’ use of different voting systems in different parties of the state

violates the Equal Protection Clause” by valuing one person’s vote more than another’s. Id. at 897.

Because there was no explicit classification, the defendants argued that rational basis was the

standard of review while the plaintiffs argued that strict scrutiny is the appropriate standard because

the voting system affects the plaintiffs’ fundamental right to vote. Id. The district court did not

directly decide the issue and reserved its determination for trial. Id.

The court then turned to Supreme Court precedent and found the plaintiffs’ allegations fitting

squarely within the Court’s Equal Protection admonitions. The district court did find the plaintiffs’

claims to be more analogous to Bush v. Gore than any other of the Supreme Court’s previous voting

rights cases, but the principle behind each of them remained the same. Id. at 898-99. According to

the court, as a result of the state’s arbitrary and disparate treatment of voters in different counties,

“voters in some counties are statistically less likely to have their votes counted than voters in other

counties in the same state in the same election for the same office. Similarly situated persons are

treated differently in an arbitrary manner.” Id. at 899. Thus, because of the voting system used, the

state “‘value[s] one person’s vote over that of another,’ . . . [and] does not afford the ‘equal dignity

owed to each voter.’” Id. (quoting Bush v. Gore, 531 U.S. at 104-05).

The third applicable case involved the California gubernatorial recall election. Following

the disposition of Common Cause, but prior to the gubernatorial recall election in California in 2003,

various plaintiffs filed suit in the same district court as Common Cause, seeking an injunction that

would prevent the use of punch card technology in the recall election. See Southwest Voter

Registration Education Project v. Shelley, 278 F. Supp. 2d 1131 (C.D. Cal. 2003). The district court

denied the request for the injunction, finding that res judicata and laches were viable defenses based

on the Common Cause consent decree, that the plaintiffs were unlikely to succeed on the merits of

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 19

their claims based on the short time until the election, and that the balance of hardships and the

public interest weighed in favor of allowing the election to go forward as scheduled. Id. In a fast

moving process, the district court issued its ruling on August 20, 2003, and the case was argued

before the Ninth Circuit on September 11. The court issued its opinion on September 15 and

reversed the district court. Southwest Voter Registration Education Project v. Shelley, 344 F.3d 882

(9th Cir. 2003), vacated by 344 F.3d 913, rev’d by 344 F.3d 914 (en banc). The panel stayed its

decision and the court decided to hear the case en banc on September 22. The en banc court

reversed the panel decision on the following day, which allowed the election to proceed days later.

The panel had concluded that the plaintiffs’ “Equal Protection Clause claim mirrors the one

recently analyzed by the Supreme Court in Bush v. Gore.” Southwest Voter, 344 F.3d at 894. The

panel cited Reynolds in which the Supreme Court held that “[i]t has been repeatedly recognized that

all qualified voters have a constitutionally protected right to vote, and to have their votes counted.”

377 U.S. at 554 (citations omitted). Citing precedent, the panel wrote that the case before it

presented “a classic voting rights equal protection claim.” Southwest Voter, 344 F.3d at 895. The

panel cited Gray v. Sanders, where the Court held that: “Every voter’s vote is entitled to be counted

once. It must be correctly counted and reported.” 372 U.S. 368, 380 (1963). Also discussed was

Reynolds, where the Court held that “the weight of a citizen’s vote cannot be made to depend on

where he lives.” Reynolds, 377 U.S. at 567.

According to the panel, all that the Constitution requires is some assurance that the

rudimentary requirements of equal treatment and fundamental fairness are satisfied. Id. at 896

(citations omitted). The panel also concluded that strict scrutiny is ordinarily the appropriate

standard in a situation akin to the one presented because the use of deficient technology affects the

fundamental right to have one’s vote counted. Id. at 899. Nevertheless, the court found that it need

not reach the question because the plaintiffs demonstrated a likelihood of success on the merits

regardless of the standard of review employed. Id. at 900. “Plaintiffs have tendered sufficient

evidence to demonstrate a likelihood of success in establishing that there is no rational basis for

using voting systems that have been decertified as ‘unacceptable’ in some counties and not others.”

Id.

The case was then heard en banc and the panel decision was reversed. Southwest Voter

Registration Education Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) (en banc). The court, in a

per curiam opinion with no dissents, concluded that the district court did not abuse its discretion in

denying the preliminary injunction. Id. at 918. The court, however, did not reject outright the Equal

Protection argument, noting its similarity to the claims advanced in Bush v. Gore, nor did it reject

outright the plaintiffs’ Voting Rights Act claim.

The court repeatedly emphasized that abuse of discretion is the standard for reviewing a

district court’s denial of a preliminary injunction. Shelley, 344 F.3d at 917 (“The [abuse of

discretion] standard of review is important to our resolution of this case.”); id. at 918 (“We review

the district court’s decision to grant or deny a preliminary injunction for abuse of discretion. Our

review is limited and deferential.”) (internal citation omitted). The court then stated that: “We are

met with legal authority on both sides of the contest. There is no doubt that the right to vote is

fundamental, but a federal court cannot lightly interfere with or enjoin a state election.” Id. at 918

(citation omitted). In a short one paragraph discussion of the Equal Protection claim, the en banc

court stated: “We have not previously had occasion to consider the precise equal protection claim

raised here. That a panel of this court unanimously concluded the claim had merit provides evidence

that the argument is one over which reasonable jurists may differ.” Id. Nevertheless, with great

heed paid to the principle that a federal court should not lightly enjoin a state election, the en banc

court held that the “district court did not abuse its discretion in holding that the plaintiffs have not

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 20

established a clear probability of success on the merits of their equal protection claim.” Id.

(emphasis added).

The court then turned to the plaintiffs’ Voting Rights Act claim, which it referred to as

“stronger.” Id. Nevertheless, noting a “significant dispute in the record, however, as to the degree

and significance of the [residual vote] disparity,” the court concluded that “although plaintiffs have

shown a possibility of success on14the merits, we cannot say that at this stage they have shown a

strong likelihood.” Id. at 918-19.

A review of the lower court cases demonstrates consistent application of the principles

established by the Supreme Court. Each of the cases discussed above has recognized the equal

protection and Voting Rights Act implications of the use of non-notice and disparate technology and

we find much of their reasoning persuasive. We now turn to this Court’s treatment of right to vote

cases.

C. Sixth Circuit Precedent

This Circuit has yet to review a claim of this precise ilk. The district court below and the

defendants point to Mixon v. Ohio, 193 F.3d 389 (6th Cir. 1999), as establishing the relevant

framework for this Court’s analysis. Mixon addressed the constitutionality of a state allowing the

mayor to appoint a new school board for the Cleveland School District. This Court cited Supreme

Court precedent acknowledging that voting is a fundamental right, and then discussed the differing

standards of review applicable to equal protection claims. Id. at 402. According to this Court, “[i]f

the challenged legislation grants the right to vote to some residents while denying the vote to others,

then we must subject the legislation to strict scrutiny and determine whether the exclusions are

necessary to promote a compelling state interest.” Id. (citing Dunn v. Blumstein, 405 U.S. 330, 337

(1972)). “If the legislation, however, does not infringe on the right to vote [and instead simply

regulates a tangential aspect of the franchise], we examine the challenged statute under the rational

basis standard.” Id.; see also Craigmiles v. Giles, 312 F.3d 220, 223 (6th Cir. 2002) (“When a

statute regulates certain ‘fundamental rights’ (e.g. voting or abortion) or distinguishes between

people on the basis of certain ‘suspect characteristics’ (e.g. race or national origin), the statute is

subject to ‘strict scrutiny.’”). The Mixon court proceeded to analyze the claim presented under

rational basis because the statute did not infringe upon any right to vote — that is, “[a]lthough

Plaintiffs have a fundamental right to vote in elections before them, there is no fundamental right

to elect an administrative body such as a school board, even if other cities in the state may do so.”

Mixon, 193 F.3d at 403 (citations omitted).

14

We disagree with the dissent’s characterization of the en banc decision in Shelley. Calling the en banc

reversal a “rather firm rebuke” of the panel decision, the dissent chastises us for finding insight in the panel decision.

Dis. Op. at 40. In any event, our reading of the en banc decision is that the court believed that the issues needed further

development and analysis, but that countervailing concerns — i.e., the imminent recall election — dictated the contrary

outcome. See Shelley, 344 F.3d at 918 (“We are met with legal authority on both sides of the contest. There is no doubt

that the right to vote is fundamental, but a federal court cannot lightly interfere with or enjoin a state election.”). In fact,

the en banc opinion consistently stressed the abuse of discretion standard in that case and thus, we do not believe that

the en banc decision was a “rather firm rebuke” of the panel’s rationale. See id. (“We have not previously had occasion

to consider the precise equal protection claim raised here. That a panel of this court unanimously concluded that the

claim had merit provides evidence that the argument is one over which reasonable jurists may differ.”). Nevertheless,

with authority on both sides of the issue, the court held that the “district court did not abuse its discretion in holding that

the plaintiffs have not established a clear probability of success on the merits of their equal protection claim.” Id.

(emphasis added). This language hardly has the features of a “rather firm rebuke.” The decision instead placed emphasis

on the fact that a state election was mere days away. Here, we have no imminent election weighing on the other side

of the scale.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 21

IV.

A. Standard of Review

“On appeal from a judgment entered following a bench trial, we review the district court’s

factual findings for clear error and its legal conclusions de novo.” Pressman v. Franklin Nat. Bank,

384 F.3d 182, 185 (6th Cir. 2004).

B. Analysis

Supreme Court precedent and our own Mixon framework instructs that if the Ohio statute

permitting localities to use deficient voting technology “infringe[s] on the right to vote,” then strict

scrutiny applies; if the statute does not “infringe on the right to vote,” and merely regulates some

tangential aspect of the franchise, then rational basis review applies. Mixon, 193 F.3d at 402. This

begs the question of what the “right to vote” encompasses. We easily conclude that the right to have

one’s vote counted on equal terms is part of the right to vote. No other conclusion is possible from

the case law and thus, strict scrutiny applies.15

All of the precedent indicates that having one’s vote properly counted is fundamental to the

franchise. See e.g., Bush, 531 U.S. at 104-05 (indicating that having one’s vote counted on equal

terms with others in the relevant jurisdiction is the quintessential “right to vote” case); Reynolds, 377

U.S. at 555 (“[T]he right of suffrage can be denied by a debasement or dilution of the weight of a

citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”); South,

339 U.S. at 279 (Douglas, J., dissenting) (“There is more to the right to vote than the right to mark

a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right includes

the right to have the ballot counted. It also includes the right to have the vote counted at full value

without dilution or discount.”) (citations omitted); Colegrove, 328 U.S. at 569-71 (Black, J.,

dissenting) (“The Constitutionally guaranteed right to vote and the right to have one’s vote counted

clearly imply the policy that state election systems, no matter what their form, should be designed

to give approximately equal weight to each vote cast.”); Classic, 313 U.S. at 315 (“Obviously

included within the right to choose, secured by the Constitution, is the right of qualified voters

within a state to cast their ballots and have them counted.”); 42 U.S.C. 1973l(c)(1) (defining the

right to vote to include “having such ballot counted properly and included in the appropriate total

15

Again, the dissent misinterprets Burdick when “harmoniz[ing]” it with our decision in Mixon. Dis. Op. at

35. As the dissent properly notes, Mixon distinguished between regulations that “infringe on the right to vote” and those

that do not. The dissent then concludes that reading Mixon and Burdick together requires that we apply rational basis

review. These cases (and others cited by the dissent) are distinguishable, however, because they do not infringe on the

right to vote or the manner of its exercise. In Burdick, the First Amendment right to ballot access was at issue, not the

right to have one’s vote properly counted. Likewise, in Mixon, there was no right to vote for the office at issue. Thus,

the law allowing for the appointment of the officials did not take away any right to vote, because the right to vote did

not exist for that office. The dissent also relies on Weber v. Shelley, 347 F.3d 1101 (9th Cir. 2003), a case it claims “is

directly on point.” Dis. Op. at 35-36. In Weber, however, there was no claim that voters residing in different parts of

the state had a lesser likelihood of having their votes counted. Rather, the issue was over whether an electronic-voting

system without a paper trail, which the plaintiffs alleged was susceptible to manipulation and potential fraud, restricted

the right to vote. There was no allegation in the case that the electronic system — due to its inherent nature — was less

likely to count votes than the previously in place system. Nor could there be any conclusion that the lack of a paper trail

restricted the right to vote. Thus, the court applied rational basis review — that is, whether the government’s conclusion

that the risk of fraud and manipulation was insufficient to prevent a change to the electronic system was rational. With

no evidence that the decision was irrational — that is, no evidence that someone’s vote was unlikely to be counted —

the court upheld the decision. That is in no way inconsistent (or controlling) over our inquiry here. Even in light of the

cases the dissent cites, we simply cannot subscribe to the dissent’s belief that in the case before us — where deficient

technology results in a disparate likelihood of the proper counting of votes — that the right to vote is not infringed.

Under the dissent’s apparent understanding of the right to vote, it seems that the right to vote would not have been

infringed in Bush v. Gore because all voters were allowed to cast ballots on equal terms and properly marked ballots

would be correctly counted.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 22

of votes cast”). Case law, statutory definitions, and common sense indicate that the “right to vote”

is infringed in this case by the use of the two deficient technologies challenged by the plaintiffs. The

distinction in Mixon between elections where persons are entitled to vote (strict scrutiny) and a

statute authorizing appointment of administrators instead of having an election (rational basis)

further confirms our reasoning here.

Strict scrutiny requires us to determine whether the use of the two challenged technologies

in some jurisdictions but not others is a practice “narrowly tailored to further compelling

governmental interests.” Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Under this standard, the

State’s proffered justifications of cost and training are wholly insufficient to sustain its continued

certification of the technologies. Administrative convenience is simply not a compelling

justification in light of the fundamental nature of the right. See Frontiero v. Richardson, 411 U.S.

677, 690 (1973) (plurality) (“[W]hen we enter the realm of ‘strict judicial scrutiny’ there can be no

doubt that ‘administrative convenience’ is no shibboleth, the mere recitation of which dictates

constitutionality.”). Moreover, Ohio’s reliance on the cost of upgrading the technology fails in light

of the monies already devoted to the process. See Shapiro v. Thompson, 394 U.S. 618, 633 (1969)

(“[C]osts cannot justify an otherwise invidious classification.”); see also Dunn, 405 U.S. at 343

(“And if there are other, reasonable ways to achieve those goals with a lesser burden on

constitutionally protected activity, a State may not choose the way of greater interference.”).

Additionally, Ohio has used cost as if it were a silver bullet. Any change from the status quo

necessarily involves some cost. The State has failed to put forth any evidence indicating that it

cannot manage the costs and instead, the evidence indicates that the State has either budgeted for

the transition from its own funds or through funds provided by the federal government. The mere

fact that there is some cost involved does not make that factor compelling. Further, the State’s

alleged concern with voter fraud, likewise, in this case, is not compelling in light of the Secretary

of State’s report concluding that the technology can securely be implemented. See also HB 262, 125

Gen. Assem., Reg. Sess. (Ohio 2004). Finding no compelling reason supporting the State’s

continued certification of the deficient non-notice technology, i.e., punch-card system and central-

count optical scan systems,16 and in light of the fundamental nature of the right to vote, the State’s

actions violate the Equal Protection Clause. The continued certification of this technology by the

Secretary of State does not provide the minimal adequate procedural safeguards to prevent the

unconstitutional dilution of votes based on where a voter resides. See Bush, 531 U.S. at 109.17

Unequal treatment and unfairness are perpetrated by allowing this technology to remain certified

and the State’s reasons for maintaining this disparate system are far from compelling.

Our decision is consistent with binding Supreme Court precedent. In Harper, the Supreme

Court held that using wealth or ability to pay as a factor in the power of the franchise “is to introduce

a capricious or irrelevant factor.” Harper, 383 U.S. at 668. Likewise, the maintenance of disparate

technologies — that the State itself has recognized is inherently flawed and that “[t]he evidence is

overwhelming that thousands of Ohio voters have been disenfranchised by antiquated voting

equipment” — debases and devalues citizens’ votes and is arbitrary and capricious. The technology

provided to a voter by the State, like that voter’s wealth, has no relation to voting qualifications or

the value of that vote. “[T]he right to vote is too precious, too fundamental to be so burdened or

conditioned.” Harper, 383 U.S. at 670; see also Hasen, Bush v. Gore and the Future of Equal

16

We have focused on the inherent and easily identifiable flaws in the punch card system but the same goes

for central count optical scan technology. The error rate for that technology is sufficiently high and the state’s

justifications in support of retaining it sufficiently weak such that we conclude that decertification of the technology “is

practicable and, we conclude, necessary.” Bush, 531 U.S. at 106.

17

Additionally, it would be odd indeed for the Supreme Court to have held in Bush v. Gore that the Equal

Protection Clause protects the right to have one’s vote counted properly during a recount, but for us to conclude that the

Clause does not cover the right to have one’s vote counted properly in the first instance.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 23

Protection Law in Elections, 29 Fla. St. U. L. Rev. at 395 (concluding that the disparate treatment

that results from “different voting systems with different error rates . . . is all the more disturbing

to the extent that it correlates with wealth, looking functionally like the poll tax the Court struck

down in Harper”).

Furthermore, as in Reynolds:

Overweighing and overvaluation of the votes of those living [in a county with

adequate technology] has the certain effect of dilution and undervaluation of the

voters of those living [in a county with deficient technology]. The resulting

discrimination against those individual voters living in disfavored areas is easily

demonstrable mathematically. Their right to vote is simply not the same right to vote

as that of those living in a favored part of the State . . . Weighting the votes of

citizens differently, by any method or means, merely because of where they happen

to reside, hardly seems justifiable.

377 U.S. at 563 (emphasis added). By maintaining a system in which these two technologies are

utilized, voters in Ohio vote under two separate standards. Although voters approach the polls with

the opportunity to vote in the same elections for the same candidates, once they step into the voting

booth, they have an unequal chance of their vote being counted, not as a result of any action on the

part of the voter, but because of the different technology utilized. Voters able to utilize notice

technology choose candidates and before their vote is turned in and counted, the technology notifies

them of any errors that would result in the vote being disregarded. Those voters forced to use non-

notice technology are not notified of any errors in their ballot and, should errors exist, their votes

are disregarded; moreover, voters using the two challenged technologies have an additional

likelihood of18

disenfranchisement due to the inherent deficiencies of the punch-card and central-count

optical scan.

The plaintiffs have alleged vote dilution due to disparate use of certain voting technologies.

They have demonstrated their allegations mathematically and from the testimony of witnesses on

both sides of the contests. The State’s own documents and public statements support the plaintiffs’

claims. The State of Ohio concedes that punch-card technology is substandard. See, e.g., Secretary

of State’s Help America Vote Act Report (“Boards of election should upgrade their voting systems

to new, more trustworthy technology.”); id. (“These goals demand immediate attention, or our state

runs the risk of repeating the problems of our nation’s most recent presidential election — and

suffering irreparable damage to the most important and basic concepts of democracy.”); id. (“The

evidence is overwhelming that thousands of Ohio voters have been disenfranchised by antiquated

voting equipment. . . .”). The use of the punch card and central-count optical scan technologies

result in a greater likelihood19that one’s vote will not be counted on the same terms as the vote of

someone in a notice county. The State’s continued use of this technology results in the weighting

18

In a glass half-full kind of way, the dissent points out that “[w]e should not, after all, lose sight of the fact

that nearly 98% of the votes cast even in the punch-card counties were properly counted in the 2000 presidential

election.” Dis. Op. at 43. For comparative purposes, we would simply point out that the 2000 presidential election in

Florida was decided by 0.009% of the vote; New Mexico was decided by 0.061% of the vote; Wisconsin, 0.22%; Iowa,

0.31%; Oregon, 0.44%; New Hampshire, 1.27%; Minnesota, 2.4%; Missouri, 3.34%; Ohio, 3.51%; Nevada, 3.55%;

Tennessee 3.86%; and Pennsylvania, 4.17%. In the 2004 presidential election, Wisconsin was decided by 0.38%; Iowa,

0.67%; New Mexico, 0.79%; New Hampshire, 1.37%; Ohio, 2.11%; Pennsylvania, 2.5%; Nevada, 2.59%; Michigan,

3.42%; and Minnesota, 3.48%. That nearly 98% of the vote was counted seems less deserving of the dissent’s accolades

in light of the margin of decision in those states.

19

Additionally, by stating that the problem is not with the technology, but rather with voters not properly voting,

the dissent incorrectly understands the issue. The Caltech-MIT report demonstrates that the error rates due to

deficiencies in the technology hold up when other factors are held constant. Moreover, finding no problems with the

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 24

of votes differently and this is hardly justifiable. Technology, as a method or means to dilute voting

strength, is no less a violation than any other invidious method. According to the data presented

below, and allowing for 0.75% of intentional residual votes, approximately 55,000 presidential votes

were lost in 2000 by those using punch card technology.20 This is also a conservative estimate. Ten

counties using punch cards had residual vote rates in excess of 3% in the 2000 election.

Although we apply strict scrutiny, we note that the use of this technology would also fail

under rational basis review.21 This is true under rational basis review both searching and

deferential. See Lawrence v. Texas, 539 U.S. 558, 579 (2003) (O’Connor, J., concurring in

judgment). An individual’s vote is the lifeblood of a democracy. To that extent, we find it difficult

to conjure up what the State’s legitimate interest is by the use of technology that dilutes the right to

vote. The State says that its interests in failing to decertify non-notice and substandard technology

is based on the cost of replacement and training workers on the new machines. We fail to see how

the interest is justified or rational at the expense of tens of thousands of votes.

Under FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993), legislation “must be

upheld against equal protection challenge if there is any reasonably conceivable state of facts that

could provide a rational basis” for the challenged action. This does not mean, however, that state

action survives if the State’s proffered justifications are belied by the actual facts of the case or are

simply arbitrary justifications. Such is the case here; no facts provide a rational basis for Ohio’s

technology because a properly marked ballot is counted would have rendered Bush v. Gore superfluous. In that case,

properly marked ballots were counted without problem, but the Court still found an equal protection violation.

20

3,593,958 votes were cast using punch cards; there were 81,767 residual votes, of which 26,955 are arguably

explained by intentional undervoting. Thus, there were approximately 54,812 lost residual votes due to error. Also

interesting is that following the disputed 2000 election, CalTech and MIT launched the Caltech/MIT Voting Technology

Project, a joint venture between the two institutions to study, in part, the reliability of existing voting equipment, see

Caltech-MIT Voting Technology Project, http://www.vote.caltech.edu, and produced numerous reports, including one

titled, Residual Votes Attributable to Technology: An Assessment of the Reliability of Existing Voting Equipment (Version

2: March 30, 2001). According to the report, punch cards have significantly higher average rates of residual votes than

other systems and the difference between the “best” system and punch cards was approximately 1.5% of all ballots cast.

Report at 2. The Report also found that across all counties in the United States where data was available and across all

technologies, the average residual rate was 2.3%. Report at 7. The Report further concluded that punch cards have a

residual vote rate of approximately 3% compared to other technologies at a 2% residual rate — thus, “the residual voting

rate of punch card methods . . . is 50 percent higher than the residual voting rate” of paper, level, and optical scan

machines. Report at 9. The Report contained a strongly worded admonition:

Votomatic punch cards have consistently high average residual vote rates. In 1988, 1996 and again

in 2000, punch cards had substantially higher rates of over and under votes than other available

technologies. This is of particular concern because approximately one in three voters use punch cards.

If election administrators wish to avoid catastrophic failures, they may heed th[is] warning . . . Stop

using punch cards.

Report at 11. Of additional interest is the following statement from the Report:

These patterns hold up to closer statistical scrutiny, holding constant turnout, income, racial

composition of counties, age distributions of counties, literacy rates, the year of a shift in technology,

the number of offices and candidates on the ballot, and other factors that operate in a county or in a

particular year.

Report at 22. In conclusion, the Report stated that “[t]he incidence of such residual votes with punch card methods .

. . is forty to seventy percent higher than the incidence of residual votes with the other technologies.” Report at 17.

21

This is also what the Ninth Circuit panel concluded: “Plaintiffs have tendered sufficient evidence to

demonstrate a likelihood of success in establishing that there is no rational basis for using voting systems that have been

decertified as ‘unacceptable’ in some counties and not others.” Southwest Voter, 344 F.3d at 900.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 25

continued certification of the deficient technologies. Governments almost always attempt to justify

their conduct based on cost and administrative convenience, but the State’s reliance on these factors

is not necessarily rational, and certainly is not in this case. The State has failed to put forth any

evidence indicating that it cannot manage the costs and instead, the evidence indicates that the State

has either budgeted for the transition from its own funds or through funds provided by the federal

government The loss of so many votes because of the continued use of machines that the State

admits are substandard is arbitrary and cannot be considered rational in light of so-claimed, but

unsupported, cost concerns. Moreover, the experience of the counties in Ohio who have stopped

using the non-notice substandard technology weigh heavily against the State’s argument. None of

these counties have encountered significant technological difficulties or undue financial burdens.

The Secretary of State’s report and Ohio legislation concludes that a switch to electronic machines

can be securely implemented and there have been no instances of voter fraud in Ohio with the use

of electronic voting machines. Moreover, the evidence demonstrates that more accurate

technologies are readily available. And finally, while the State’s intentions to comply with HAVA

are insufficient to moot the case, they do cast considerable doubt on its claims that it is not

economically feasible for it to decertify the technology. In fact, the State’s HAVA report

sufficiently belies each of the State’s proffered justifications for failing to decertify the substandard

technology. Thus, while we hold that strict scrutiny is the appropriate standard of review, we also

determine that the State’s failure to decertify the use of non-notice and technologically unsound

punch card and central count optical scan machines would also fail rational basis review.

Decertification of the technology “is practicable and, we conclude, necessary.” Bush, 531 U.S. at

106.

Now, a few words in response to the dissent. To start, the dissent misunderstands the nature

of the plaintiffs’ claim. According to the dissent, no equal protection problem arises because

“properly marked ballots are counted and accorded the same value everywhere in the state.” Dis.

Op. at 34. The dissent attributes any mistakes to the voters themselves and concludes that the only

problem is that “voters in some counties have a reduced chance of turning in a properly marked

ballot that will actually be counted because certain voting methods do not catch the voters’ own

inadvertent mistakes.” Id. This fundamentally mischaracterizes the problem with the substandard

voting technology. The evidence cited above demonstrates that the problem with the punch card

ballot in its design is that a vast number of properly marked ballots are not counted due to machine

error. Thus, the issue is not as the dissent states, but rather, whether a state “may allow the use of

different types of voting equipment with substantially different levels of accuracy.” See Black v.

McGuffage, 209 F. Supp. 2d 889, 898 (N.D. Ill. 2002) (emphasis added).

Next, the main basis for the dissent is some “question [over] the precedential value of Bush

v. Gore.” Dis. Op. at 32. The dissent answers the question by concluding that Bush v. Gore is “a

case whose precedential value . . . is at best questionable.” Dis. Op. at 36.22 The dissent endeavors

to explain three “reasons for doubting Bush v. Gore’s precedential value: ‘[T]he limiting language

in the opinion, the lack of seriousness with which the Court undertook its own analysis, and the

22

Respectfully, the Supreme Court does not issue non-precedential opinions. Moreover, the basis for the

dissent’s questioning of the precedential value of Bush v. Gore is based on a single law review article. Dis. Op. at 37

(concluding that Bush v. Gore is not deserving of stare decisis respect for the “reasons ably articulated by a leading

election-law expert”). We would note that there are at least 116 law review articles with “Bush v. Gore” in the title,

accessible on Westlaw, by conducting a search in the database JLR, using TI (“Bush v. Gore”). A search for book titles

on the New York University Law Library web page reveals at least 20 published books discussing Bush v. Gore and the

2000 election. The dissent, however, has cited only the Hasen article.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 26

inconsistency with other jurisprudence by this majority of Justices23 all point in the direction of

assuming that Bush v. Gore is not good precedent for an expansive reading of equal protection law

in elections.’” Dis. Op. at 37 (quoting Hasen, Bush v. Gore and the Future of Equal Protection Law

in Elections, 29 Fla. St. U. L. Rev. at 391). The dissent then focuses on the first two reasons: the

lack of the apparent seriousness with which the Court decided the case and the inconsistency with

other jurisprudence. It is curious that the dissent bases its analysis on the belief that the Supreme

Court decided Bush v. Gore, a case that decided the 2000 presidential election, with a “lack of

seriousness,” and we choose to disagree with that approach. Further, even if the Court was playing

fast and loose with the law, we, as an inferior court, are not in a position to disregard Supreme Court

precedent because we think they got it wrong. Presumably, if in the dissent’s view Bush v. Gore had

“precedential value” — as we think all Supreme Court opinions do — he would be compelled to

join us. In fact, early this Term, the Supreme Court discussed the proper approach when a lower

court finds itself bound by precedent with which it disagrees. See Eberhart v. United States, 126

S. Ct. 403, 407 (2005) (per curiam) (“We finally add a word about the approach taken by the Court

of Appeals. Although we find its disposition to have been in error, we fully appreciate that it is an

error shared among the circuits, and that it was caused in large part by imprecision in our prior cases.

Our repetition of the phrase “mandatory and jurisdictional” has understandably led the lower courts

to err on the side of caution by giving the limitations in Rules 33 and 45 the force of subject-matter

jurisdiction. Convinced, therefore, that Robinson and Smith governed this case, the Seventh Circuit

felt bound to apply them, even though it expressed grave doubts in light of Kontrick. This was a

prudent course. It neither forced the issue by upsetting what the Court of Appeals took to be our

settled precedents, nor buried the issue by proceeding in a summary fashion. By adhering to its

understanding of precedent, yet plainly expressing its doubts, it facilitated our review.”).

Finally, we reject the dissent’s claim that Professor Hasen’s article has overruled the

Supreme Court’s decision in Bush v. Gore because “the Supreme Court has had ample opportunity

to prove him wrong by explaining, or even citing to, its decision in Bush v. Gore.” Dis. Op. at 37.

If the dissent were correct, perhaps the same must be said about the hundreds of other law review

articles discussing the decision’s legitimacy and applicability to other factual scenarios. The Court

has not sought to debate these other law professors and commentators and under the dissent’s

reasoning, those articles must also be correct. In fact, taken to its logical extreme, the dissent’s

reasoning means that every claim in a law review article that the Supreme Court has failed to refute

is actually the law of the land. Thus, we find the dissent’s claim that Bush v. Gore has no

precedential value because the Court has not sought to “prove [Professor Hasen] wrong” empty.

Moreover, the dissent bases its analysis entirely upon Professor Hasen’s suggestion that Bush

v. Gore is not serious, but fails to acknowledge the second half of Hasen’s article where he

concludes that: “In sum, if Bush v. Gore indeed has precedential value, it clearly should apply to

prevent the use of these different voting systems in the same election.” Hasen, Bush v. Gore, 29 Fla.

St. U. L. Rev. at 395; see also id. at 379 (stating that his article “concludes that, if the case were

taken seriously, Bush v. Gore should have great precedential value in changing a host of voting

procedures and mechanisms, particularly when those procedures and mechanisms are challenged

prospectively”).24 Thus, the dissent’s argument is easily deconstructed. It is premised solely on

23

By this, Hasen means that the five member majority “constitutes a strong break from the conservative

majority’s usual approach to equal protection, and, therefore, it will not likely be extended or embraced by them in future

cases.” Hasen, Bush v. Gore, 29 Fla. St. U. L. Rev. at 390.

24

This conclusion is correct of course, for, as we noted earlier, it would be suspect to hold that equal protection

protects the right to have one’s vote counted in a recount, but for us to conclude that the Clause does not protect the right

to have one’s vote counted in the first instance. See also Bush, 531 U.S. at 552 (Breyer, J., dissenting) (“Thus, in a

system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal

chance that their votes will be counted. I do not see how the fact that this results from counties’ selection of different

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 27

Professor Hasen’s article suggesting that Bush v. Gore should not be given precedential value.

Because the dissent concludes that the decision should not be given precedential value (because the

Court did not take the case seriously and an apparent inconsistency with other precedent) it does not

mention the fact that Professor Hasen goes on to conclude that if Bush v. Gore were followed, it

would dictate the result we reach here.25 Unfortunately for the dissent, inferior courts do not have

the luxury of suggesting that a Supreme Court decision simply should not be followed without some

tenable legal basis. Thus, because the dissent has not endeavored to provide any legitimate basis

or principled manner of distinguishing Bush v. Gore — and presumably has not adopted Hasen’s

argument that “[e]mbarrassment provides the only hope that the case will have precedential value,”

Hasen, Bush v. Gore, 29 Fla. St. U. L. Rev. at 391 — his argument that we simply should not follow

the case does not give us any pause.

In the end, the dissent’s reasoning ultimately flounders. The dissent concludes that our

decision is “persuasive only to the extent that Bush v. Gore is controlling. Neither [our decision or

Shelley I], in my view, successfully refutes the compelling reasons supplied by Professor Hasen for

refusing to ‘take Bush v. Gore’s equal protection holding seriously.’” Dis. Op. at 40 (citing Hasen,

29 Fla. St. U. L. Rev. at 380). The dissent, however, fails to mention Professor Hasen’s ultimate

conclusion that “if Bush v. Gore indeed has precedential value, it clearly should apply to prevent the

use of these different voting systems in the same election.” Hasen, Bush v. Gore, 29 Fla. St. U. L.

Rev. at 395. Without the luxury or the power to decide which Supreme Court decisions we want

to follow, we find Professor Hasen’s ultimate conclusion, that the reasoning of Bush v. Gore applies

here, to be sound.

Finally, the dissent criticizes us for not articulating a precise mathematical formula for

determining when voting technology is constitutional and when it is not. Precise mathematical

formulas, however, have never been a part of voting rights cases or cases involving strict judicial

scrutiny. A judicially imposed mathematical formula for evaluating voting rights cases would be

purely arbitrary. We simply cannot say that x% error rate raises constitutional concerns but y%

error rate does not. Nor has the Supreme Court done so or required us to do so in any case applying

strict scrutiny.26 Rather, when confronted with difficult constitutional questions, a reasoned

voting machines rather than a court order makes the outcome any more fair.”).

25

Hasen’s article also contradicts the dissent’s conclusion that rational basis review applies.

It is hornbook law that laws infringing on fundamental rights, including voting, must be judged under

the standard of strict scrutiny — that is, that the state must have a compelling interest in treating voters

differently and that the means must be narrowly tailored to meet that interest. The Court [in Bush v.

Gore] did nothing to suggest that anything less than strict scrutiny, such as an easier to meet ‘rational

basis test,’ should apply to analyze the burdens on the fundamental right of voting in this context.

Hasen, Bush v. Gore, 29 Fla. St. U. L. Rev. at 389. Professor Hasen further refutes the dissent’s claim that rational basis

review would apply to a case involving a challenge to the use of disparate technologies. He concludes that “Bush v. Gore

appears to mandate strict scrutiny, not application of rational basis review.” Hasen, Bush v. Gore, 29 Fla. St. U. L. Rev.

at 395.

26

For example, in Reynolds, the Court stated:

We are told that the matter of apportioning representation in a state legislature is a complex and

many-faceted one. We are advised that States can rationally consider factors other than population in

apportioning legislative representation. We are admonished not to restrict the power of the States to

impose differing views as to political philosophy on their citizens. We are cautioned about the dangers

of entering into political thickets and mathematical quagmires. Our answer is this: a denial of

constitutionally protected rights demands judicial protection; our oath and our office require no less

of us.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 28

analytical approach is necessary. Once the plaintiffs establish that strict scrutiny applies, the State

must put forth a compelling reason for its infringement of a fundamental right and we, as a

reviewing court, must evaluate that reasons against the plaintiffs’ claims. This analysis necessary

includes consideration of various factors, including the legal, financial, and practical. See e.g.,

Dunn, 405 U.S. at 343 (“And if there are other, reasonable ways to achieve those goals with a lesser

burden on constitutionally protected activity, a State may not choose the way of greater

interference.”).

We do not review such claims in a vacuum but do so with a focus on the real world

justifications and implications of Ohio’s decision. Future claims of this sort will be evaluated with

these various factors in mind. If, in the dissent’s hypothetical example, where one technology yields

a 0.1% error rate and another technology has a 0.01% error rate, and a lawsuit is filed similar to this

one, the same questions will have to be asked and the context of the challenge studied and evaluated.

If switching to the new technology would bankrupt the State, or the technology was in its

development phase, or the potential for fraud was high, or for any number of reasons the State did

not believe that the technology could properly be implemented, then, even in light of our decision

today, the claim may fail. If, however, switching to the new technology provided only minimal

inconvenience, then the State’s reasons might be found to be less than compelling. In this case, we

do not seek to constitutionalize local election procedures, nor do we seek to mandate uniformity and

absolute equality in voting procedures, nor do we hold that notice technology is constitutionally

mandated; we merely evaluate the right to vote in light of the State’s proffered justifications for

using the two challenged technologies at issue and hold that the State’s reasons are not compelling.

Our inquiry here is aided by Ohio’s decision to adopt a litigation position that is undermined by its

actions and public words. We therefore hold that the two technologies challenged here fail to satisfy

“rudimentary requirements of equal treatment and fundamental fairness,” Bush, 531 U.S. at 109, and

that based on the 27evidence presented below, the plaintiffs established a violation of the Equal

Protection Clause.

V.

The Plaintiff’s Voting Rights Act Claim

The African-American plaintiffs also advance a claim under Section 2 of the Voting Rights

Act against Hamilton, Montgomery, and Summit Counties based on their use of punch card

technology. After the bench trial, the district court concluded that the plaintiffs’ “Voting Rights Act

claim fails because their alleged injury does not amount to a vote denial under § 2 of the Voting

Rights Act.” This conclusion was based on the court’s legal interpretation of the Voting Rights Act

that a vote denial claim is cognizable only “when a state or municipality employs a ‘practice or

procedure’ that results in the ‘actual’ denial of the right to vote on account of race.” Finding that

“none of the plaintiffs . . . claim that they have been denied access to the polls,” the court held that

“these facts do not allow this Court to conclude that an ‘actual’ denial of the right to vote on account

of race occurs.” Further, the district court concluded that the contention that “punch card ballots

subject [the African-American plaintiffs] to a greater probability that their votes will not be counted

377 U.S. at 566.

27

Because we find in favor of the plaintiffs on Equal Protection grounds — under both strict scrutiny and under

rational basis review — we do not reach their claim under the Due Process Clause. The dissent, however, points out our

alleged failure to grasp the idea that equality is not a one-way street. Dis. Op. at 42. Thus, in the dissent’s view,

“governments would also be free to turn the ratchet down to cheaper non-notice technology.” Id. We choose not to

engage in the dissent in this battle. Instead, we simply note that the question remains for another day as to whether such

a ratcheting down would violate the Due Process Clause.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 29

than whites,” is insufficient to constitute a denial of the right to vote. Thus, the district court held

“that the plaintiffs have not established their vote denial claim.”

The Supreme Court has said that in interpreting this Act, we should read it in a “a manner

that provides the ‘broadest possible scope’ in combating racial discrimination.” Chisom, 501 U.S.

at 403 (internal quotation omitted). Moreover, under the 1982 amendments to section 2 of the Act,

we are concerned with the results of a practice, not the government’s intent. Chisom, 501 U.S. at

394; 42 U.S.C. § 1973(a).

Section 2(a) of the Act prohibits the use of any electoral practice or procedure that “results

in a denial or abridgement of the right of any citizen of the United States to vote on account of race

or color.” We have noted that

Section 2, unlike other federal legislation that prohibits racial discrimination, does

not require proof of discriminatory intent. Instead, a plaintiff need show only that

the challenged action or requirement has a discriminatory effect on members of a

protected group: A violation of subsection (a) of this section is established if, based

on the totality of the circumstances, it is shown that the political processes leading

to nomination or election in the State or political subdivision are not equally open to

participation by members of a class of citizens protected by subsection (a) of this

section in that its members have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of their

choice.

Moore v. Detroit School Reform Bd., 293 F.3d 352, 363 (6th Cir. 2002). The right to vote is defined

in 42 U.S.C. § 1973l(c)(1) to include “all action necessary to make a vote effective” including

“casting a ballot and having such ballot counted properly.” The language of the Act clearly

encompasses within the “right of any citizen of the United States to vote” the right to “hav[e] such

ballot counted properly.” Because the African-American plaintiffs claim that they are

disproportionately denied the right to have their ballots counted properly, the district court erred in

concluding that the plaintiffs did not state a claim for a violation of the right to vote under the

Voting Rights Act.

Finding that the plaintiffs’ evidence supports a denial of the right to vote, the next inquiry

is under section 2(b) of the Act to determine whether the evidence establishes a violation of the Act.

See Chisom, 501 U.S. at 394 (“Congress not only incorporated the results test in the paragraph that

formerly constituted the entire § 2, but also designated that paragraph as subsection (a) and added

a new subsection (b) to make clear that an application of the results test requires an inquiry into ‘the

totality of the circumstances.’”). Section 2(b) states that an electoral practice or procedure violates

the franchise under section (a)

if, based on the totality of circumstances, it is shown that the political processes

leading to nomination or election in the State or political subdivision are not equally

open to participation by members of a class of citizens protected by subsection (a)

of this section in that its members have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of their

choice.

42 U.S.C. § 1973(b). Consistent with the results test, this Court has noted that unlike race based

claims under the Equal Protection Clause of Fifteenth Amendment, where evidence of

discriminatory intent is necessary, “Section 2 of the Voting Rights Act requires only a showing of

discriminatory effect.” Mixon, 193 F.3d at 407 (citing Thornburg, 478 U.S. at 70-74). Moreover,

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 30

claims under the Voting Rights Act require “an intensely local appraisal of the design and impact”

of the challenged electoral practice. Thornburg, 478 U.S. at 78 (internal quotation omitted).

The plaintiffs here alleged that punch cards in these three counties have a discriminatory

effect and presented evidence to support their claim. Akin to Southwest Voter, the plaintiffs

presented evidence demonstrating that “minority voters disproportionately reside in punch-card

counties and that, even within those counties, punch-card machines discard minority votes at a

higher rate.” 344 F.3d at 918. According to the Ninth Circuit en banc court, “[t]o establish a

Section 2 violation, plaintiffs need only demonstrate ‘a causal connection between the challenged

voting practice and [a] prohibited discriminatory result.’” Id. (quoting Smith v. Salt River Project

Agric. Improvement & Power Dist., 109 F.3d 586, 597 (9th Cir. 1997)).

On this part of the analysis, the district court made very few findings based on its

determination under section 2(a). These finding included the finding that there are many residual

votes in Appalachian counties with virtually non-existent minority populations, and that undervoting

in Franklin County (which was not sued under the Act) is higher than in Hamilton County (which

was sued under the Act). Essentially, the court found that because white voters in other counties

with minimal minority populations suffer from a similar likelihood that their votes will not be

counted, the plaintiffs here have not made a sufficient claim under the Act. The district court did

not make any findings under section 2(b) of the Act and did not make the ultimate determination as

to whether the plaintiffs proved their claim under the totality of the circumstances. Thus, the

appropriate course for this Court is to remand to allow the district court to make detailed findings

in the first instance. To aid in the analysis below, however, we do note that Johnson v. De Grandy

rejects the argument that vote dilution in one part of the state can be remedied by another part of the

state. 512 U.S. 997, 1019 (1994) (rejecting the premise that “the rights of some minority voters

under § 2 may be traded off against the rights of other members of the same minority class”). Thus,

what occurred in Franklin County is not necessarily relevant to the success of the plaintiffs’ claims

in Hamilton, Summit, and Montgomery Counties.

Because the plaintiffs properly stated a claim under the Act, the question then for the district

court, under Section 2(b), is whether under the totality of circumstances, the evidence demonstrates

a discriminatory result. On remand, the district court will consider the voluminous amount of the

plaintiffs’ evidence, including the regression analysis showing the correlation between overvoting

and the percentage of African-American voters in a given precinct. In Hamilton County the

regression coefficient was .517, in Summit County it was .682, and in Montgomery County it was

.440. The plaintiffs’ expert described these correlations as “strong.” The plaintiffs claim that the

evidence put forth demonstrates that: (1) African-Americans in Hamilton County overvoted at a rate

seven times higher than non African-Americans; (2) in Summit County, African-Americans

overvoted at a rate nine times higher than non African-Americans; and (3) in Montgomery County,

African-Americans had a residual voting rate 2.5 times that of non African-Americans. The

defendants did not present contradictory evidence and did not dispute that racial disparities exist,

but instead asserted that education and socioeconomic conditions, not race, account for the

disparities. We note, however, that “[t]he essence of a § 2 claim is that a certain electoral law,

practice, or structure interacts with social and historical conditions to cause an inequality in the

opportunities enjoyed by black and white voters to elect their preferred representatives.” Thornburg,

478 U.S. at 47. With these considerations in mind, we vacate the district court’s ruling in favor of

the defendants on the Voting Rights Act claim and remand for further proceedings consistent with

this opinion.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 31

VI.

We also reverse the district court’s judgment denying class and sub-class certification. The

district court’s nine-line order states that the plaintiffs reside in only four of the eighty-eight Ohio

counties and therefore they “are not proper representatives for voters in other counties.” The court

also concluded that although the Secretary of State is the chief elections officer, each county has its

own board of elections with substantial powers.

The plaintiffs sought to certify two classes. The first plaintiff class would consist of: “All

persons who vote, or who are registered to vote in jurisdictions within the State of Ohio which do

not employ ballot marking or other voting machinery with in-precinct error notification technology.”

The second class, for purposes of the Voting Rights Act claim consists of: “All African-American

persons who vote, or who are registered to vote in jurisdictions within the State of Ohio which do

not employ ballot marking or other voting machinery with in-precinct error notification technology.”

The first step in the class certification process requires the plaintiffs to satisfy Rule 23(a). That is,

One or more members of a class may sue or be sued as representative parties on

behalf of all only if (1) the class is so numerous that joinder of all members is

impracticable, (2) there are questions of law or fact common to the class, (3) the

claims or defenses of the representative parties are typical of the claims or defenses

of the class, and (4) the representative parties will fairly and adequately protect the

interests of the class.

Fed. R. Civ. P. 23(a).

The district court found that “the plaintiffs are not proper representatives for voters in other

counties.” We disagree. The plaintiffs clearly satisfy the requirements of Rule 23(a) and have

satisfied their burden of so proving. See Senter v. Gen. Motors Corp., 532 F.2d 511, 522 (6th Cir.

1976). The class is so numerous that joinder is impracticable, there are questions of law and fact

common to the class, the claims of the representative parties are typical of the claims of the class,

and the representatives will fairly and adequately protect the interests of the class. Further, we find

that the plaintiffs have satisfied their burden under the second step of the analysis in Rule 23(b).

Under section (b)(2), “the party opposing the class [Secretary of State] has acted or refused to act

[by decertifying deficient technology] on grounds generally applicable to the class, thereby making

appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a

whole.” Thus, we reverse the district court’s order and conclude that class certification is

appropriate for the plaintiffs pursuing state-wide relief under the Equal Protection Clause and sub-

class certification is appropriate for the African-American plaintiffs within Hamilton, Summit, and

Montgomery Counties.

VII.

Violations of the Equal Protection Clause are no less deserving of protection because they

are accomplished with a modern machine than with outdated prejudices. The dissent’s appeal to

caution notwithstanding, “the basic ingredient of [judicial] decision is principle, and it should not

be compromised and parceled out a little in one case, a little more in another, until eventually

someone receives the full benefit. If the principle is sound and constitutional, it is the birthright of

every American, not to be accorded begrudgingly or piecemeal or to special groups only, but to

everyone in its entirety whenever it is brought into play.” EARL WARREN, THE MEMOIRS OF CHIEF

JUSTICE EARL WARREN 6 (Madison Books 2001) (1977). The district court’s decision with regard

to the plaintiffs’ equal protection claim is REVERSED. The case is REMANDED with instructions

to enter judgment in favor of the plaintiffs. With regard to the plaintiffs’ Voting Rights Act claim,

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 32

the district court’s decision is VACATED, and REMANDED for proceedings consistent with this

opinion.

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 33

__________________

DISSENT

__________________

RONALD LEE GILMAN, Circuit Judge, dissenting. The majority today imposes by judicial

decree important changes to the Ohio electoral system, doing so largely in reliance on the Supreme

Court’s murky decision in Bush v. Gore, 531 U.S. 98 (2000) (per curiam), a vacated Ninth Circuit

panel opinion in a California recall-election dispute, and two district court cases that never reached

a final judgment on the merits. In my view, these sources cannot bear the weight that the majority

places on them, and should not form the basis for subjecting an indeterminate number of state and

local election decisions to the strictest level of constitutional scrutiny.

I would take a more cautious approach, one that recognizes the primacy of the executive and

legislative branches in the electoral process and the significant costs that the majority’s holding will

place on state and local governments, the entities that are charged with most aspects of election

administration. Although I agree with the majority that the plaintiffs have standing and that the case

is not moot, I cannot join the majority’s analysis of the equal protection and Voting Rights Act

challenges brought by the plaintiffs, or its cursory reversal of the district court’s denial of class

certification. Accordingly, I respectfully dissent.

My analysis of the equal protection question will proceed in four steps. I will first explain

why I believe that the Supreme Court voting-rights precedents cited by the majority are

distinguishable from the present case and do not establish, as the majority asserts, that strict scrutiny

is the proper constitutional standard of review. The second and third parts of my analysis question

the precedential value of Bush v. Gore and the other authorities on which the majority relies,

demonstrating why an expansive reading of those authorities threatens to constitutionalize the

procedures and mechanisms used to cast a vote under the guise of advancing still unsettled notions

of equality. Finally, I will explore the practical effect of the majority’s holding in the wake of the

Help America Vote Act (HAVA) and Ohio’s promise to comply with the terms of HAVA.

I. CONSTITUTIONAL STANDARD OF REVIEW

A reader unfamiliar with the Supreme Court’s voting-rights precedents might conclude after

reading the majority opinion that federal courts have long dealt with challenges analogous to the one

made in the present case, and that strict scrutiny has been universally recognized as the appropriate

standard of review. The majority’s lengthy exposition of the fundamental nature of the right to vote

cites many cases purportedly to that effect, taking quotations out of their factual and legal context.

A closer examination of those cases, however, reveals that the challenges upheld in them were

significantly different from the one before us in the present case, and that the appropriate standard

of review in voting-rights cases is far from settled.

A. Voting-rights precedents

In Gray v. Sanders, 372 U.S. 368 (1963), for example, the Supreme Court invalidated

Georgia’s “county unit system” for counting votes in party primaries that were held to nominate

candidates for the United States Senate and several state offices. Under the original county unit

system, a resident in the least populous county in the state “had an influence in the nomination of

candidates equivalent to 99 residents” of the state’s most populous county. Id. at 371. The state

amended the system to increase the influence of the more populous counties, but the district court

still found that “the vote of each citizen counts for less and less as the population of the county of

his residence increases.” Id. at 372-73 (citation omitted). Articulating its famous “one person, one

vote” standard, id. at 381, the Court held that the county-unit system violated the Equal Protection

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 34

Clause because it gave “one person . . . twice or 10 times the voting power of another person in a

statewide election merely because he lives in a rural area or because he lives in the smallest rural

county[.]” Id. at 379. The Court, without announcing a standard of review, explained that the

constitutional infirmity in the Georgia system inhered in the system’s failure to provide “equality

of voting power.” Id. at 381.

Wesberry v. Sanders, 376 U.S. 1 (1964), also cited by the majority, is not even an equal

protection case. The Wesberry Court did not hold, as the majority states, that “Equal Protection

requires substantial equality of population amongst the districts established by state legislatures for

the election of members to the United States House of Representatives.” Maj. Op. at 12 (emphasis

added). To the contrary, the Court relied exclusively on two sections found in Article I of the

Constitution, stating explicitly that it did not need to “reach the arguments that the Georgia statute

violates the Due Process, Equal Protection and Privileges and Immunities Clauses of the Fourteenth

Amendment.” 376 U.S. at 8 n.10; see also Daniel Hays Lowenstein & Richard L. Hasen, Election

Law: Cases and Materials 113 (2d ed. 2001) (“Wesberry was not decided under the Equal Protection

Clause but under Article I, §§ 2 and 4 of the Constitution, and was thus applicable only to the United

States House of Representatives.”). Article I, §§ 2 and 4 of the Constitution, the Court held, barred

states from drawing congressional districts in which “a vote is worth more in one district than in

another.” Id. at 8. Because it never addressed the plaintiff’s equal protection challenge, the Court

did not need to—and did not—articulate the appropriate standard of review.

The pathbreaking decision in Reynolds v. Sims, 377 U.S. 533 (1964), marked the first time

that the Court announced a standard of review similar to the strict-scrutiny standard currently

applied in reviewing laws that discriminate against suspect classes or infringe on certain

constitutionally protected rights. See id. at 562 (“[A]ny alleged infringement of the right of citizens

to vote must be carefully and meticulously scrutinized.”). Again, however, the Court announced this

standard in a case that dealt with the “weighting of votes;” specifically, unequally populated state

legislative districts. See Lowenstein & Hasen, supra, at 105, 114; Reynolds, 377 U.S. at 563

(“Overweighting and overvaluation of the votes of those living here has the certain effect of dilution

and undervaluation of the votes of those living there.”). Although it invalidated Alabama’s

legislative apportionment plan and held that both houses in a bicameral state legislature must be

apportioned on a “substantially equal population basis,” the Court did not do so on the ground that

the law was not narrowly tailored to further a compelling governmental interest, see, e.g., Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995), but instead because the existing apportionment

plan violated the “one person, one vote” principle—that “the weight of a citizen’s vote cannot be

made to depend on where he lives.” Reynolds, 377 U.S. at 567 (emphasis added).

The two other cases subjecting state voting practices to strict scrutiny cited by the majority

are likewise inapposite. In Harper v. Virginia Board of Elections, 383 U.S. 663, 668 (1966), the

Court invalidated the applicable laws of the four remaining states that charged a poll tax to vote in

state elections. The Court applied strict scrutiny in Harper, citing Reynolds for the proposition that,

“where fundamental rights and liberties are asserted under the Equal Protection Clause,

classifications [that] might invade or restrain them must be closely scrutinized and carefully

confined.” Id. at 670. Virginia’s poll tax, the Court reasoned, determined the qualifications of

voters on the basis of wealth, a ground that is “traditionally disfavored,” id. at 668, and was

therefore unconstitutional.

The second of the two cases is Dunn v. Blumstein, 405 U.S. 330, 334 (1972), where the Court

struck down Tennessee’s requirement that, in order to qualify as a registered voter, a person must

have resided in the state for at least one year and in the county for at least three months. Strict

scrutiny was the appropriate standard of review, the Court held, because the durational-residency

requirement affected two fundamental rights—the right to vote and the right to travel. See id. at 338

(explaining that strict scrutiny applied, despite an earlier durational-residency-requirement case

No. 05-3044 Stewart, et al. v. Blackwell, et al. Page 35

using a less stringent standard of review, because the Tennessee law “penaliz[ed]” only people who

had recently exercised their right to travel). Dunn is therefore unique because the Court faced a state

law that impinged on two fundamental rights protected by the Fourteenth Amendment. Indeed,

courts since Dunn have emphasized the importance of both the Tennessee law’s impact on two

constitutionally protected activities and Dunn’s status as a voter-qualification precedent. See, e.g.,

Donatelli v. Mitchell, 2 F.3d 508, 515 (3d Cir. 1993) (explaining that the Court in Dunn reviewed

a law that both denied access to the ballot and “directly burdened citizens’ fundamental

constitutional right to travel”); Greidinger v. Davis, 988 F.2d 1344, 1349 (4th Cir. 1993) (classifying

Dunn as a case “involving voter qualifications and ballot access”).

Stated simply, none of these Supreme Court precedents resembles the claim made by the

plaintiffs in the present case. These plaintiffs do not allege that Ohio has imposed an impermissible

voter-qualification requirement, as in Harper and Dunn. Nor do they argue that the votes in Ohio

are “weighted” differently—that is, that a properly marked ballot “is worth more in one district than

in another.” Wesberry, 376 U.S. at 8; see also Reynolds, 377 U.S. at 563. Instead, they maintain

that voters in counties that employ inferior voting equipment “are subjected to a significantly greater

risk that their votes will not be counted.” In other words, properly marked ballots are counted and

accorded the same value everywhere in the state, but voters in some counties have a reduced chance

of turning in a properly marked ballot that will actually be counted because certain voting methods

do not catch the voters’ own inadvertent mistakes.

This challenge to the nuts-and-bolts of election administration, regardless of its merit, cannot

be equated with either discriminatory voter-qualification requirements or generally applicable state

laws that deny “equality of voting power,” Gray, 372 U.S. at 381, which are the principal types of

state actions that the Supreme Court has subjected to strict scrutiny. See generally Richard L.

Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 Fla. St. U. L. Rev.

377, 393 (2001) (explaining that the Warren Court precedents govern only the equal opportunity to

vote and the equal weighting of votes, not “equality in the procedures and mechanisms used for

voting”).

B. Rational basis is the proper standard of review

The Supreme Court has never adhered to the view that all legislation or practices that affect

the right to vote must be subjected to strict scrutiny. See Greidinger, 988 F.2d at 1350 (collecting

cases in which the Supreme Court has applied rational-basis scrutiny in upholding the denial of

absentee ballots to pretrial detainees and in sustaining a state requirement that persons seeking to

vote in a primary must register with a political party a specified number of days before a general

election). As the First Circuit succinctly explained, “[t]he Supreme Court has eschewed a hard-and-

fast rule, and instead has adopted a flexible framework for testing the validity of election

regulations.” Werme v. Merrill, 84 F.3d 479, 483 (1st Cir. 1996). That “flexible framework” was

most recently articulated by the Court in Burdick v. Takushi, 504 U.S. 428 (1992), a case that the

majority attempts to limit to the specific setting of political candidates’ access to the ballot. Maj.

Op. at 14-16. I believe, however, that Burdick sets forth a general test for evaluating challenges to

state voting laws and practices under the Fourteenth Amendment, and therefore cannot be so easily

“dismiss[ed].” Maj. Op. at 15.

The Supreme Court in Burdick began by observing that “[e]lection laws will invariably

impose some burden upon individual voters.” Burdick, 504 U.S. at 433; see also Harper, 383 U.S.

at 673 (Black, J., dissenting) (“All voting laws treat some persons differently from others in some

respects.”). Subjecting “every voting regulation to strict scrutiny,” the Court warned, “would tie the

hands of States seeking to assure that elections are operated equitably and efficiently.” Burdick, 504

U.S. at 433. Courts facing challenges to state election laws or practices should therefore start by

“weigh[ing] the character and magnitude of the asserted injury” to voting rights against the state’s

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articulated interests, “taking into consideration the extent to which those interests make it necessary

to burden the [voter’s] rights.” Id. at 434 (citations and quotation marks omitted). The Court

continued:

Under this standard, the rigorousness of [the judicial] inquiry into the propriety of

a state election law depends upon the extent to which a challenged regulation

burdens First and Fourteenth Amendment rights. Thus, . . . when those rights are

subjected to severe restrictions, the regulation must be narrowly drawn to advance

a state interest of compelling importance. But when a state election law provision

imposes only reasonable, nondiscriminatory restrictions upon the First and

Fourteenth Amendment rights of voters, the State’s important regulatory interests are

generally sufficient to justify the restrictions.

Id. (citations and quotation marks omitted). In other words, only state laws and regulations that

impose “severe restrictions” on the right to vote should be subjected to strict scrutiny.

Federal courts applying the Burdick framework have evaluated challenges to various state

voting regulations under a rational-basis standard of review. See, e.g., Werme, 84 F.3d at 485-86

(upholding under rational-basis review a New Hampshire law that prevented a member of the

Libertarian Party from serving as a ballot clerk on Election Day); Donatelli, 2 F.3d at 514-15

(upholding under rational-basis review a state reapportionment plan that temporarily assigned a state

senator to a district that had not elected him); see also id. at 515-16 (collecting court-of-appeals and

district-court cases that reviewed claims of “temporary disenfranchisement” due to reapportionment

under a rational-basis standard). These cases from our sister circuits serve as reminder that, the tone

of the majority opinion notwithstanding, many state and local voting regulations are evaluated under

the rational-basis standard of review.

I believe that this court’s decision in Mixon v. Ohio, 193 F.3d 389 (6th Cir. 1999), establishes

a framework consistent with the one articulated by the Supreme Court in Burdick. In Mixon, this

court held that state legislation that “grants the right to vote to some residents while denying the vote

to others” is subject to strict scrutiny, whereas legislation that “does not infringe on the right to vote”

is examined “under the rational basis standard.” Id. at 402. Two aspects of this statement stand out.

The first is that Mixon might not readily apply to the present case because the plaintiffs have not

challenged any legislation that “grants the right to vote to some while denying the vote to others.”

See id. Instead, they are challenging “electoral practices,” none of which purport to grant the right

to vote to anyone. This court has not yet decided whether the Mixon analysis applies to state

practices other than legislation.

Assuming that Mixon does apply, however, there is a second noteworthy aspect of the

standard enunciated in that case—namely, that this court drew a distinction between state laws and

regulations that “infringe on the right to vote” and those that do not. Id. This standard approximates

the line drawn by the Supreme Court in Burdick, where the Court emphasized the difference between

laws that severely restrict voting rights and those that “impose[] only reasonable, nondiscriminatory

restrictions” on such rights. Burdick, 504 U.S. at 434. If we are to harmonize Mixon and Burdick,

as I think we must, then we should review the challenged voting practices under the rational-basis

standard because those practices do not “severe[ly] restrict[]” the plaintiffs’ right to vote. See id.

Also consistent with Burdick is the Ninth Circuit’s decision in Weber v. Shelley, 347 F.3d

1101 (9th Cir. 2003), a case relied on by the district court below and one that I believe is directly

on point. See Stewart v. Blackwell, 356 F. Supp. 2d 791, 800 (S.D. Ohio 2004). In Weber, a voter

brought an Equal Protection challenge to a California county’s decision to replace paper ballots with

an electronic-voting system. 347 F.3d at 1102. The computerized system, the voter maintained, was

susceptible to manipulation and potential fraud because it lacked a paper audit trail. Id. at 1104-

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1105. Applying the Burdick framework, the Ninth Circuit held that the “use of paperless,

touchscreen voting systems [did not] severely restrict[] the right to vote,” and that the voting

procedure was therefore subject only to rational-basis review. Id. at 1106. Because the electronic-

voting machines constituted a reasonable method of ameliorating the problems inherent in paper

ballots, the change in voting procedures was rationally related to the state’s interest in “ensuring that

elections are fair and orderly.” Id.; see also id. at 1107 (opining that the state and the county had

“made a reasonable, politically neutral and non-discriminatory choice to certify [and to use]

touchscreen systems as an alternative to paper ballots”); accord Am. Ass’n of People with

Disabilities v. Shelley, 324 F. Supp. 2d 1120, 1127 (C.D. Cal. 2004) (reviewing the Calfiornia

Secretary of State’s decision to decertify Direct Recording Electronic (DRE) voting machines under

the rational-basis standard of review).

Weber is significant for a number of reasons. First, when faced with an Equal Protection

challenge to the type of voting technology certified by the Califorina Secretary of State and utilized

by the county, the Ninth Circuit found the appropriate standard of review in Burdick—not in

Reynolds, Harper, Dunn, or any other pre-Burdick precedents. See Weber, 347 F.3d at 1106. The

second reason is that, in applying Burdick, the Ninth Circuit held that the increased potential for

voter fraud with the new voting technology did not constitute a “severe restriction” on the right to

vote, so that the decision to implement such electoral changes was subject only to rational-basis

review. Id.

Finally, and perhaps most importantly, Weber is the closest on its facts to the challenge

levied by the plaintiffs in the present case. Indeed, Weber is the exact converse of the present case.

Whereas the plaintiffs here decry the refusal of the counties to utilize improved voting technologies,

the voter in Weber complained precisely because her county had abandoned traditional paper ballots

in favor of the newly available technology. The contrast between the two cases epitomizes the

predicament in which election officials find themselves—damned if they upgrade voting machines,

damned if they do not—and further supports adopting a constitutional standard of review that

affords state and local officials the flexibility necessary to regulate an election system constantly in

flux.

I cannot help but note, however, the majority’s insistence that the result here would be the

same even if it applied rational-basis scrutiny. Maj. Op. at 24. The majority makes this unsupported

assertion despite having chided the district court for doing the same thing—that is, summarily

concluding that the result would be the same regardless of the appropriate standard of review. Maj.

Op. at 8. If the state’s proffered justifications for employing certain voting methods were truly as

flimsy as the majority portrays them, then the majority would have no need to discuss at length why

the state’s practices must be judged under the strict-scrutiny standard.

The proper standard of review, in my opinion, is critical to the judicial inquiry in this case.

Because I believe that the Supreme Court’s decision in Burdick has supplanted the factually

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