ACLU lawsuit against Ohio's punch-card ballots first in nation

Monday, July 26, 2004

CLEVELAND -- Four years after Florida's hanging chads captivated a nation and less than 100 days before what could be another tight presidential race, this swing state's punch-card voting system is being challenged in court.

The trial, set to begin today, is the first in the nation, voting experts say. Lawsuits filed by the American Civil Liberties Union against several other states have been settled with agreements that punch-card ballots will be replaced.

But even a victory by the ACLU in Ohio would be unlikely to bring change before this year's presidential election because there would be too little time to make a conversion, experts said.

The ACLU wants all punch-card ballots in the state removed before November, saying the system is antiquated and causes errors that lead to undercounting of minority group votes.

"From our point of view, the case is about providing a system for registering and counting votes in the state that is as reliable as possible in a system that treats every voter the same way," said Richard Saphire, a University of Dayton law professor working on the ACLU case.

Ohio is one of a handful of states that still use mostly punch-cards. The ballots are used in 69 of Ohio's 88 counties, representing nearly 73 percent of registered voters.

Violates 14th AmendmentThe ACLU argues that these ballots are more likely to go uncounted than votes cast with other systems, and that use of the ballots violates the voting rights of blacks, who mostly live in punch-card counties. The lawsuit claims the system violates the 14th Amendment, which guarantees due process and equal protection.

The state says it's working as fast as it can to replace punch-cards -- but problems with electronic voting technology have stalled the effort.

"They're claiming that the state has been denying the right to vote to African-Americans," said Rich Coglianese, an attorney defending the state. "It's our position that the state has not denied the right to vote to anybody, and the evidence will never be able to show that."

Michael Shamos, a Carnegie Mellon University computer scientist and voting technology consultant, said that although he believes "punch-card voting is the worst form of voting ever devised by mankind," the ACLU will have a difficult time proving the constitutional issues.

"The reason for that is those machines are not racially specific, no one's targeting certain minorities for the use of those machines," he said.

Punch-card balloting gained notoriety during the 2000 presidential election in Florida, where problems with the ballots led to 36 days of legal wrangling and recounts, until George W. Bush was declared the winner of the state, and thus the White House, by just 537 votes.

Bush won Ohio by a larger margin, but in a poll last week of Ohio voters by the American Research Group, he was tied with Democratic nominee John Kerry.

The Florida fiasco inspired Congress to appropriate $3.9 billion for an overhaul of the nation's voting systems, one that was to be fueled by technology promised by companies such as Ohio's Diebold Inc.

Secretary of State Kenneth Blackwell led Ohio's efforts to get $133 million from that program, but he said earlier this month that three counties that were considering Diebold equipment cannot switch by November because tests revealed security problems.

Blackwell spokesman Carlo LoParo said Friday the agency hopes to have electronic voting that meets security requirements in place by 2005.

The ACLU filed similar claims against Florida, Georgia, Illinois, Maryland and California. All but the Georgia cases were settled when the states agreed to stop using punch-card voting. The court ruled the Georgia case moot after state officials adopted statewide touch-screen voting.

Research shows punch-card systems are more prone to errors than other systems such as touch-screen ballots, said Larry Sabato, director of the Center for Politics at the University of Virginia. The research also backs up the ACLU's claim that punch-card mistakes happen more often to minorities, he said.

"On the other hand, there is evidence that well-maintained punch-card machines, which are much cheaper than the high-tech variety, are not much more likely to produce error, especially when coupled with intense civic education before and on Election Day," he said.

But electronic voting has also raised alarms. Several states discovered technical and other glitches in their presidential primaries, and at least 20 states have introduced legislation requiring a paper record of every vote cast.

The experts say that regardless of the lawsuit's outcome, it's unlikely Ohio would get rid of punch-card voting before Nov. 2.

New machines would have to be in place and certified before the election, poll workers would have to be trained in the new technology and the state would have to approve funding -- all in less than 100 days, Shamos said.

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