Punch-card voting challenge in court

By Cindi Andrews
Enquirer staff writer 26 July 2004

A trial will start today in federal court in Akron in which the American Civil Liberties Union alleges that Hamilton County and three other counties in Ohio that use punch-card ballots are violating the rights of voters.

It is the first ACLU voting case to go to trial since the 2000 presidential election debacle, when thousands of punch-card ballots in Florida were called into question. Congress subsequently adopted the Help America Vote Act, which requires improved voting equipment by November 2006.

Similar lawsuits filed in California, Illinois, Georgia and Florida were settled out of court, according to ACLU attorney Richard Saphire, a University of Dayton professor.

The ACLU will argue that the punch cards used in 69 of Ohio's 88 counties are more mistake-prone than other voting methods. The ACLU also says African-Americans are almost seven times more likely than other voters to pick too many candidates with punch cards. Such so-called overvoting invalidates the vote.

"The effect of this dual system is to deny the votes and dilute the voting strength of Ohioans compelled to use less reliable, less accurate machinery," the ACLU said in a legal brief outlining its case.

The state disagrees: "People have not been denied the right to vote by the state of Ohio," said Assistant Attorney General Rich Coglianese.

Secretary of State Ken Blackwell, the state's chief elections official, is the main defendant.

Blackwell is leading the campaign to replace the very systems he's being sued over. In addition to Hamilton County, the ACLU has named Montgomery, Summit and Sandusky counties as defendants.

"Why we're going through this whole exercise and why we're a defendant in it has always been a mystery to us," Assistant Hamilton County Prosecutor Carl Stich said. "The Board of Elections has been moving with great dispatch to ensure that our voting system is top-notch."

The ACLU is not saying voting errors changed the outcome of any races, and it has conceded there's not time to replace all punch-card systems before the November elections.

However, the case could be a precedent-setting one that's ultimately decided not in U.S. District Court in Akron, where Judge David Dowd will hear it, but in a higher court.

The ACLU wants a system that enables voters to review their ballots before turning them in. That's very difficult to do with punch-cards, while ATM-like electronic voting machines show voters their choices and stop them if they try to overvote.

In Ohio's 2000 election, the ACLU says, users of punch cards didn't have their presidential votes counted 2.3 percent of the time. That compared with 1.7 percent of votes using optical scanning machines and 0.7 percent of ballots using electronic devices. African-Americans were far more likely to make mistakes because they are more likely to be poor and less educated, the ACLU alleges.

Sandusky County switched recently from punch cards to optical scan, in which voters fill in ovals with a pencil. Optical-scan is allowed by federal law, but only if there's equipment at the precinct to allow voters to review their choices. That's not the case with Sandusky's system.

The case puts people such as Blackwell and Hamilton County Board of Elections Chairman Tim Burke in the position of being sued over the same voting systems they have been trying to replace for several years.

Blackwell forced counties to pick one of three makers of voting machines this year. Several problems prevented their installation. Among them: The companies failed to fix security weaknesses outlined by Blackwell's office, and the General Assembly insisted that the machines be able to print out a copy of each voter's ballot.

Said Burke: "I do want to see (the punch cards) changed. I've testified to that effect. I believe we're on the road to making that change. But the problem we've run into is there's reason to believe the new equipment might not be entirely ready ... yet."

For the ACLU's part, Blackwell's assurances that he wants to the state's voting systems aren't good enough.

"Words are great," Saphire said. "The other (issue) is whether he is in a position to do it. The legislature promised to come up with the money, but this is Ohio."