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Suits Seek Uniformity in States' Vote-Counting

Law: In the latest such action, the ACLU says machines' accuracy levels vary widely in California.

April 18, 2001|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

In the months since the U.S. Supreme Court ruling that awarded the presidential election to George W. Bush, lawsuits have started sprouting up around the nation demanding greater uniformity in statewide vote-counting.

Legal experts say the suits--a byproduct of the court's decision that a lack of uniformity in vote recount procedures violated equal protection rights--will determine whether the controversial ruling has ramifications for future elections.

"This squarely raises a question scholars have been discussing since Bush vs. Gore was handed down," said J. Clark Kelso, a professor at McGeorge School of Law in Sacramento.

The suits are also providing a new forum for national debate over how to fix the nation's ailing voting machinery--a problem brought into sharp focus by November's election.

The latest such suit was filed in Los Angeles federal court Tuesday by the American Civil Liberties Union, alleging that the wide variety of voting machines used in California results in sharply disparate levels of accuracy. Calling the state's voting system flawed and discriminatory, the ACLU charges that "a disproportionate number of votes in some counties"--including Los Angeles--are not counted.

Additionally, the suit, filed on behalf of five nonprofit groups and eight voters, asserts that "a disproportionate number of African American, Latino and Asian American voters do not have their votes counted at all."

In November, 53.4% of California voters, including those in Los Angeles County, used machines for "pre-scored" punch cards, similar to those that created some of the problems with hanging and pregnant chads in Florida. Ballots cast using those machines accounted for 74.8% of all ballots that did not register a vote for president in California, the suit states.

The error rate for these machines was more than double that of any other system used in the state and three times as high as in Riverside County, which used high-tech touch screen voting machines, according to the suit.

"Under our Constitution, every vote should be counted, regardless of where a person lives or the color of his or her skin," Dan Tokaji, ACLU staff attorney, said in a news conference at the organization's Los Angeles office. "Unfortunately, that is not true in California today, due to outdated equipment which is the voting equivalent of a horse and buggy."

Legal experts said the recent wave of lawsuits--others have been filed by the ACLU and additional attorneys in Florida, Georgia and Illinois--will mark the first important tests of whether December's Supreme Court decision will be applied broadly or limited to the specifics of the 2000 presidential election.

"This is a big deal," said Loyola law professor Richard L. Hasen, who like Kelso closely followed last year's post-election legal battles.

Mark Rosenbaum, legal director of the ACLU of Southern California, said the logic of last year's Supreme Court decision, which held that Florida's manual vote recounts violated equal protection because of differing county standards, is beneficial to the plaintiffs in the Los Angeles case.

"I think that Bush vs. Gore dictates that you can't have voting machines of different levels of reliability," said Rosenbaum, who is representing Common Cause, the Southwest Voter Registration Project, the Southern Christian Leadership Conference and the Chicano Federation of San Diego County in the suit. Another plaintiff, the AFL-CIO, the nation's largest labor organization, is separately represented by its own Washington attorneys. Munger, Tolles & Olson, a large Los Angeles law firm, is assisting the ACLU.

The plaintiffs are asking a federal judge to order California Secretary of State Bill Jones to decertify the use of two types of punch card voting machines now approved in California, including the Votomatic system used in Los Angeles, San Diego and Alameda counties and the Pollstar system used in San Bernardino and Sacramento counties.

The suit also asks that Jones be required to develop vote-counting standards that protect the rights of all Californians.

The cases filed so far in the three other states contain similar allegations. For example, the suit filed in federal court in Chicago alleges that state election officials have violated the rights of Illinois voters by approving for use in some locales "punch card voting systems, which have a substantially higher rate of error in recording, counting and tabulating votes than the optical scan voting systems, which defendants authorize for use in other election jurisdictions."

In the aftermath of the 36-day legal battle to determine who won Florida--and consequently the White House--there have been widespread calls for voting reform in California and around the country.

Indeed, Secretary of State Jones and Assembly Speaker Bob Hertzberg (D-Sherman Oaks) have urged Gov. Gray Davis to put $300 million into the next state budget to help counties modernize their voting systems.

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