Stewart v. Blackwell

• Decision Date: 21 April 2006
• Docket Number: No. 05-3044.,05-3044.
• Citation: 444 F.3d 843
• Parties: Effie STEWART, et al., Plaintiffs-Appellants, v. J. Kenneth BLACKWELL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

444 F.3d 843

Effie STEWART, et al., Plaintiffs-Appellants, v. J. Kenneth BLACKWELL, et al., Defendants-Appellees.

No. 05-3044.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2005.

Decided and Filed: April 21, 2006.

COPYRIGHT MATERIAL OMITTED

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.

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

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

GILMAN, J. (pp. 880-97), delivered a separate dissenting opinion.

OPINION

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 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 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...