Original Source: http://www.aclu-sc.org/News/Releases/2001/100169/

ACLU Files Suit Challenging California's Voting System

Challenge to Flawed System Relies On Supreme Court's Interpretation of Fourteenth Amendment in Bush v. Gore

Apr. 17, 2001

     LOS ANGELES - The ACLU affiliates of Southern California, Northern California, and San Diego joined forces today on behalf of the AFL-CIO, the Southern Christian Leadership Conference, the Southwest Voter Registration and Education Project, Common Cause, and the Chicano Federation of San Diego County to challenge California's flawed and discriminatory voting system. The suit was filed in federal court and alleges that California's hodgepodge of voting systems creates unacceptably discriminatory results in violation of the U.S. Constitution and that its lack of legally binding standards for recounts aggravates these unconstitutional disparities. The suit focuses on the disparities between counties using the now-notorious pre-scored punch card voting systems and those using other, more reliable systems.

     The law firms Munger, Tolles & Olson and Altshuler, Berzon, Nussbaum, Rubin & Demain, along with University of Michigan Law Professor Evan Caminker, join the ACLU as co-counsel in the case.

     "Our democracy has been left hanging by a chad," said Dan Tokaji, staff attorney at the ACLU of Southern California. "Under our Constitution, every vote should be counted, regardless of where a person lives or the color of his or her skin. Unfortunately, that is not true in California today, thanks to outdated equipment which is the voting equivalent of a horse and buggy. Unless the State takes action, California could become the next Florida."

     "In California, every vote doesn't count, especially the votes of African American, Latino, and Asian American voters," said Mark Rosenbaum, Legal Director of the ACLU of Southern California. "The punch-card voting machines used in counties like Los Angeles, San Diego, and Alameda belong in junkyards, not voting booths. Votes are cast – then cast away. For nearly 8 "million California voters in counties using punch-card machines, there is a 2 &Mac189; times better chance of having their preferences recorded on a Lotto card than on an election ballot. This case is Bush v. Gore gone west. California has more in common with Florida than citrus trusts and theme parks – it has voting machines that mock our democracy."

     At the time of the November 2000 election, 8.4 million people were registered to vote in counties that used pre-scored punch card technology; over 5.9 million people – 53.4% of voters statewide – actually voted in the November election using a pre-scored punch card system, and over 132,000 of those votes were not counted or were counted inaccurately. Pre-scored punch card machines produce disproportionately high rates of two types of errors: undervoting and overvoting. In overvoting , the machine reads more than one vote, thus disqualifying the vote; in undervoting, the machine fails to read any vote. The combined undervote and overvote, or error rate, averaged 2.23% for counties using pre-scored punch card machines – more than twice the error rate for any other type of machine or system used in other California counties, and nearly four times the error rate of Riverside County's touch-screen voting machines. The error rate in Los Angeles County was 2.7%, or four and a half times the rate for Riverside, at .59%. The number of overvotes and undervotes in Los Angeles county alone – 72,000 – is greater than the entire number of registered voters in 26 California counties.

     Nine California counties use one of two punch card systems, the Votomatic, widely used in Florida, and the Pollstar. African American and Latino voters are much more likely to reside in one of the pre-scored-punch-card-using counties. According to one recent study, only 58.3% of white voters resided in counties using the substandard punch card systems, whereas 80.8% of African American voters and 66.6% of Latino voters reside in those counties.

     "From the time it was founded in 1957 through today, the Southern Christian Leadership Conference has fought for full equality for African Americans and others," said Rev. Norman Johnson, Interim Executive Director of SCLC of Los Angeles. "Equality at the ballot box is the foundation of freedom, the precondition for participating fully in the political life of this nation. Today in California the vote of a person of color is more likely to be overlooked, misread, or discarded than a white person's, and that is simply unacceptable."

     "The Southwest Voter Registration Education Project rests its work on the premise that voting is the key to participating fully in our nation's civic life," said Antonio Gonzalez, President of the Southwest Voter Registration Education Project, "and that premise, in turn, rests on the fundamental principle of democracy: that each vote is equal and that no vote is valued less than any other. We tell our community, 'Su voto es su voz,' or 'Your vote is your voice.' But California, by relying on an inadequate system, blocks out the legitimate voices of thousands of voters, voters who have taken the trouble to fulfill their civic duties."

     "In any election, but particularly one with a presidential election that saw a razor-thin margin of victory, it is unacceptable for even one citizen's vote to be disregarded by accidents of residence and the machinery used in one's voting jurisdiction," said Scott Harshbarger, President and CEO of Common Cause. "The injury in this case is compounded by the fact that it disproportionately harmed the same Americans – people of color – who have fought so hard throughout history to knock down the many barriers to the ballot box that they have faced."

     Today's lawsuit in California is the fourth such suit that the ACLU or its affiliates have filed since the November 2000 election; the organization filed suits in Florida, Georgia, and Illinois earlier this year. In all four cases, the ACLU targets the discrepancies created by the use of the pre-scored punch card system in some areas and better systems in other areas.

     The ACLU's Dan Tokaji noted that the Supreme Court's interpretation of the Fourteenth Amendment in Bush v. Gore paved the way for these challenges.

     "We should take the Supreme Court at its word," said Tokaji. "In Bush v. Gore, it ruled that without uniformity in recounts, some voters are disenfranchised and denied equal protection under the law. Our case relies on the same principle."