ACLU lawsuit against Ohio's punch card ballots goes to trial, first in nation

CONNIE MABIN

Associated Press

 

AKRON, Ohio - The number of punch-card votes not counted because of old or malfunctioning equipment may be small but could affect a close election like the one expected Nov. 2, a civil rights lawyer said Monday in the first punch-card system challenge to go to trial.

The American Civil Liberties Union of Ohio will show that the state's punch-card machines are not uniform and in several counties they are antiquated and don't allow voters to correct mistakes, ACLU attorney Paul Mokey said in his opening statement in U.S. District Court.

He compared two Ohio counties, Hamilton (Cincinnati) and Franklin (Columbus), which he said had similar populations and racial demographics but different equipment.

Hamilton County in 2000 had aging punch-card machines and Franklin had newer electronic equipment. Franklin reported zero overvotes for president, in which someone voted for two candidates for president, but in Hamilton 2,916 overvotes were disallowed.

"In a close election such as that is predicted in Ohio this fall, those 2,916 votes could make the difference," Mokey said.

The 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.

Rich Coglianese, an attorney defending the state, said the state would show that there is no discrimination based on voting equipment in Ohio.

Dana Walch, director of election reform at Ohio Secretary of State's office, testified that the state acknowledges problems with punch cards and plans to replace them with machines that alert voters they made a mistake by 2005.

Coglianese said there is too little time to replace punch-card systems before the presidential election.

"The worst thing the state of Ohio can do is implement new voting machines with problems," he said.

Even if punch-card systems can't be replaced before November, the ACLU still wants the judge to rule them unconstitutional. The ACLU has not endorsed an alternate system.

Coglianese said the court should not determine that only one kind of voting technology is constitutional.

Judge David D. Dowd agreed to the ACLU's request to hold further hearings to determine possible remedies if he rules in the group's favor.

The trial is the first of its kind in the nation, voting experts say. Lawsuits filed by the ACLU against several other states have been settled with agreements that punch-card ballots will be replaced.

ACLU witness Martha Kropf, professor of political science at the University of Missouri at Kansas City, testified that less than 1 percent of voters intentionally skip voting for president. Research shows precincts with higher number of black residents have more cases of undervotes or overvotes, said Kropf, who has studied voting technology across the nation.

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. In the 2000 presidential election, nearly 94,000 Ohioans had their ballots rejected.

Ohio officials say they are working as fast as it can to replace punch-cards - but problems with electronic voting technology have stalled the effort.

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 presumptive 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 North Canton'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.