Voting system trial opens

ACLU sues over use of punch-card ballots

By Erika D. Smith

The American Civil Liberties Union took its first swing at punch-card ballots Monday in U.S. District Court in Akron.

Ohio and four counties, including Summit, are trying to defend their use of the type of ballots that resulted in a contested presidential election four years ago. Although the ACLU has filed similar legal challenges in other states, this is the first to go to trial.

The ACLU of Ohio is seeking a court order to take punch cards out of commission, and a declaratory judgment that Ohio's ``unequal'' balloting system violates the rights of voters, particularly blacks.

The case hinges on two assertions bythe ACLU.

First, punch cards don't alert voters when they vote for more than one candidate or don't vote at all in a race. However, some counties have electronic voting machines that do. So voters are more likely to be disenfranchised with punch cards.

Second, older punch-card machines are often located in predominantly black precincts.

``Voting systems that do not provide voters notice of errors and a chance to correct their ballots to eliminate errors... result in larger racial differences in over- and/or undervoting than do systems that provide such notice and opportunity, such as electronic voting,'' ACLU attorney Paul Mokey said in his opening statement.

On Monday, the state's attorneys tried to separate Ohio from the conclusions of a national study used to bolster the ACLU's claim.

``You need to focus on what happens in each precinct, what happens in each county,'' said Assistant Attorney General Richard Coglianese.

Ohio is one of the few states still steeped in punch cards. The ballots will be used in 69 of Ohio's 88 counties this fall, representing about 70 percent of voters. A few counties, such as Franklin, will use older touch-screen or optical scan machines.

Initially, that ratio wasn't good enough for Secretary of State J. Kenneth Blackwell. He tried for months to buy e-voting machines from companies like Green-based Diebold Inc., but legislators delayed his efforts to work out security concerns.

Now, trial or not, Ohio won't get new voting equipment before 2005. Mokey said the ACLU understands that, and just wants punch cards replaced with electronic voting equipment ``as soon as practicable.''

Still, this week's trial has put Blackwell's office in the awkward position of defending the very method of voting that it tried so hard to ditch.

``I wouldn't call it irony,'' Ohio's director of election reform, Dana Walch, said after testifying Monday. ``We certainly wanted to be further along as a state.''

On the stand earlier, he said electronic voting machines merely provide ``options'' to voters that punch-card ballots do not. It's not that they are any ``safer.'' Still, Blackwell wants electronic voting machines in place as soon as possible.

Part of the initial reason for the rush was to avoid a trial of the ACLU's lawsuit.

Legal challenges filed by the ACLU in other states were settled with agreements that punch-card ballots would be replaced. Ohio's trial, which also names Summit, Montgomery, Hamilton and Sandusky counties as defendants, is expected to last one week.

Coglianese said he was pleased with Monday's testimony. But he said the trial isn't just about punch cards. It's about showing the state never intentionally denied anyone the right to vote.

``We have a good system,'' he said in his opening statement. ``Secretary of State Blackwell is in the process of making it an even better system.''

Later, he added: ``The secretary of state followed the law in the past. He is following the law in the present and he will continue to follow the law in the future.''

Coglianese said the state's experts would present research that shows that there is no discrimination based on voting equipment in Ohio counties.

On Monday, he tried to poke holes in testimony from the plaintiffs' witness, Martha Kropf.

The researcher testified that her study shows punch cards ``are not as good at consistently registering votes as other types of machines.'' In fact, she said, the votes of blacks in certain counties based on average age and income are disproportionately undercounted and made on punch cards.

Coglianese, along with Judge David Dowd, questioned whether her study, which is based on a national sample of voters, really applies to Ohio specifically.

Kropf defended her research as applicable for the purposes of the ACLU's case because Ohio's population tends to mirror the country's.

``Ohio is a diverse state,'' she explained. ``This country is very diverse.''