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Fairness the ballot box: several high-profile cases claim that citizens who use inferior voting machines are disenfranchised when others vote with state-of-the-art technology. These cases ask: what good is the right to vote if every ballot isn't counted?

Article Excerpt
On December 12, 2000, in one of the most dramatic and important decisions in American history, the Supreme Court in Bush v. Gore ordered an end to the counting of uncounted ballots in Florida and thus decided the presidential election. (1) The Court held that counting the ballots without preexisting standards violated equal protection because of the risk that similar ballots would be treated differently. The Court explained that "having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another." (2)

Because Bush v. Gore held that treating otherwise similar voters in a state differently denies equal protection, the decision is central in challenging other intra-state differences in voting practices. In most states, counties choose what voting machines to use, and the reliability of this technology varies tremendously.

Bush v. Gore pointed to the problems with punch-card voting machines, which prevent a significant number of ballots from being counted because of errors such as "hanging chads." Bush v. Gore provides the impetus for challenges to using this imperfect technology in some counties in a state when other counties are using much better machines.

Already, such challenges have been brought in California, Florida, Georgia, Illinois, Missouri, and Ohio. The California suit attracted national attention when a panel of the Ninth Circuit enjoined the state's recall election because different counties used different voting machines. (3) Eight days later, however, the full Ninth Circuit unanimously overruled the panel decision and allowed the election to go forward. (4)

As the 2004 presidential election approaches, similar suits are likely to be brought across the country. What are the factual and legal bases for such suits? What are their merits and their chances for success?

Ballot technology

Five major types of voting systems are currently used around the country:

* In some places, paper ballots are still hand-marked and hand-counted.

* Punch-card machines use long, relatively heavy paper ballots scored with columns of small, perforated rectangles known as chads. Once inside the voting booth, the voter inserts the card into a slot and then uses a metal stylus to punch out the rectangle on the card next to the candidate or ballot measure of choice, listed either on the ballot itself or in a separate booklet. If the booklet-type ballot is not placed in the correct location in the slot, then the candidates' names or ballot measures will not line up properly with the rectangles that must be removed to register a vote.

Also, because the candidates' names and ballot-measure identifiers do not appear on booklet-type punch-card ballots, voters may not be able to tell from a visual inspection if they cast their votes as they intended.

In addition, pressing the stylus against the pre-scored rectangle sometimes does not cause the chad...

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