ACLU to make case vs. Ohio punch cards

Akron trial this month comes amid e-voting battle

By Erika D. Smith

The American Civil Liberties Union didn't know back in 2001 that the public's confidence in electronic voting would wilt under constant criticism.

All it knew was that punch-card ballots were to blame for the botched 2000 presidential election. Voters were disenfranchised. So the ACLU filed lawsuits in Ohio, California, Florida, Georgia, Missouri and Illinois, among other states, demanding they ditch punch cards. Many states surrendered and rushed to buy electronic voting machines.

Months later, the bottom fell out when tales of security glitches surfaced from computer scientists and legislators. That hasn't fazed the ACLU, though.

On July 26, a trial is to begin in Akron in the ACLU's suit over Ohio's so-called ``unequal and inadequate system of voting.'' The case will be heard in U.S. District Court and is expected to last about a week. With appeals expected, a conclusion probably won't be reached until 2005, though.

``Our position has not changed since the outset of the litigation,'' said Paul Mokey, an ACLU attorney for the plaintiffs.

The ACLU of Ohio contends that there's a strong relationship between the racial makeup of voters in a precinct and the percentage of rejected ballots in that precinct.

That's tied to technology, Mokey said, because it's far easier to cast an erroneous vote on paper than it is electronically. Touch-screen and optical-scan machines alert voters to mistakes, such as undervotes and overvotes voting for too few or too many candidates before they cast their ballots. Voters can then make corrections.

The only way to eliminate the problem is to get rid of punch-card ballots, Mokey said.

The ACLU of Ohio isn't specifying a remedy: Optical-scan or touch-screen machines will do.

Critics insist that touch-screen machines, particularly those made by Green-based Diebold Inc., are the worst option. That didn't stop dozens of Ohio counties from ing them. But it did push Ohio legislators to delay their purchase for all but fourcounties.

That wasn't Secretary of State J. Kenneth Blackwell's first choice. He had wanted to use e-voting machines this year to avoid a legal battle with the ACLU of Ohio.

Blackwell's spokesman, Carlo LoParo, declined to say how the delay will affect the case.

California ruling

The courts have been kind to political officials in at least one other state.

On Wednesday, a federal district judge in California upheld a conditional ban on touch-screen voting machines in the November elections. Judge Florence-Marie Cooper's final ruling following a tentative one issued last week dismissed a lawsuit by Riverside, San Bernardino, Kern and Plumas counties and two groups advocating the rights of disabled people.

``The possibility of irreparable injury to plaintiffs is substantially outweighed by the advancement of the public interest,'' Cooper wrote in her opinion.

``If any voting systems are deemed by the Secretary to be defective, obsolete, or otherwise unacceptable... the Secretary is, therefore not only authorized, but expressly directed, to withdraw his approval of any voting system to be defective or unacceptable,'' the judge added.

The California Council for the Blind, the American Association of People with Disabilities and the counties had sought a preliminary injunction to suspend Secretary of State Kevin Shelley's ban.

5 Calif. counties comply

Citing problems in the March primaries, Shelley had blocked touch-screen voting machines, including thousands made by Diebold, unless counties met 23 conditions to improve security. Five counties have complied.

The lawsuit contended that the ban violates the Americans with Disabilities Act and the U.S. Constitution. Cooper, however, said voting equipment isn't covered by the ADA.

California was one of the first states to adopt electronic voting systems, spending more than $100 million.

It also was one of the first states to be sued by the ACLU for disenfranchising voters by using punch-card ballots. California had agreed to replace its punch cards by March 2004.

Shelley's spokesman, Doug Stone, wouldn't say how the possibility of using a few paper ballots this fall will affect the state's relationship with the ACLU.

Whatever happens, LoParo doesn't think it will have much effect in Ohio. ``I wouldn't take anything that happens in California as a precedent for the rest of the country,'' LoParo said.