Southwest Voter Registration Education Project v. Shelley
Court Decision - September 15, 2003 -
United States Court of Appeals,Ninth Circuit.
SOUTHWEST VOTER REGISTRATION EDUCATION PROJECT; Southern Christian Leadership
Conference of Greater Los Angeles; National Association for the Advancement of
Colored People; California State Conference of Branches, Plaintiffs-Appellants,
v.
Kevin SHELLEY, in his official capacity as California Secretary of State,
Defendant-Appellee,
Ted COSTA, Intervenor-Appellee.
No. 03-56498.
Argued and Submitted Sept. 11, 2003.
Filed Sept. 15, 2003.
Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-03-05715- SVW.
Mark D. Rosenbaum, Peter J. Eliasberg, Ben Wizner, Catherine Lahmon, Danile P. Tokaji; ACLU Foundation of Southern California; Los Angeles, CA; Erwin Chemerinsky; University of Southern California Law School; Los Angeles, CA; Laurence Tribe; Cambridge, Massachusetts, MA; for Appellants.
Andrea L. Hoch, Louise R. Mauro, Kenneth R. Williams, Douglas J. Woods, Susan R. Oie; Office of the Attorney General of California; Sacramento, CA; for Appellee.
Charles P. Diamond, Robert M. Schwartz, Robert C. Welsh, Victor H. Jih; Los Angeles, CA; Charles H. Bell, Thomas W. Hitachk; Bellow, McAndrews, Hiltachk & Davidian LLP; Sacramento, CA; for Intervenor.
Before PREGERSON, THOMAS, and PAEZ, Circuit Judges.
OPINION
PER CURIAM:
*1 On October 7, 2003, California voters will be asked to cast a ballot on some of the most important issues facing the State, including an unprecedented vote on the recall of a governor. However, forty-four percent of the electorate will be forced to use a voting system so flawed that the Secretary of State has officially deemed it "unacceptable" and banned its use in all future elections. The inherent defects in the system are such that approximately 40,000 voters who travel to the polls and cast their ballot will not have their vote counted at all. Compounding the problem is the fact that approximately a quarter of the state's polling places will not be operational because election officials have insufficient time to get them ready for the special election, and that the sheer number of gubernatorial candidates will make the antiquated voting system far more difficult to use.
Plaintiffs allege that the use of the obsolete voting systems in some counties rather than others will deny voters equal protection of the laws in violation of the United States Constitution. They seek to postpone the vote until the next regularly scheduled statewide election six months from now, when the Secretary of State has assured that all counties will be using acceptable voting equipment, and all the polls will be open. We agree that the issuance of a preliminary injunction is warranted and reverse the order of the district court.
I
It is now well over a century since Herman Hollerith won a national design competition and his invention, the punchcard, was used to tabulate the 1890 census. Although now an anachronism in the world of commerce, his creative legacy endures in elective politics. It was nearly a half century ago, around the time when newer information technologies were beginning to supplant its use in business, that Dr. Joseph P. Harris conceived of using the punchcard as a means of recording votes, and the VotoMatic machine was born. It was first used in a few counties in Georgia during the 1964 primary election, then by San Joaquin and Monterey counties in California during the 1964 general election.
VotoMatic punchcard voting systems use a pre-scored heavy stock paper ballot with columns of small, perforated rectangles. These pre-scored rectangles are removed by force to create a space that can be read by a computer or tabulating machine. A voter uses the pre-scored punchcard voting system by first inserting it in a hollow mechanical holder. A hinged booklet is attached to the mechanical holder. The booklet is attached so that it is centered over the inserted punchcard. The pages of the booklet are crimped to a hinge, so that they cannot be removed during the voting process. The attachment permits the voter to see one row of the punchcard at a time. As the pages are turned, a different row of the punchcard is exposed. The candidates and ballot initiatives are not listed on the punchcard, but must be discerned by the voter by cross-referencing the rectangles with the election booklet listing the candidates and other ballot measures that are the subject of the election. To register their vote, voters then find the correct page and punch out the appropriate rectangle with a metal stylus to create a hole in the punchcard. After casting a ballot, the punchcard voter does not have an opportunity to inspect the ballot for vote accuracy. All the voter is left to examine is a standard Hollerithian punchcard with holes punched through certain numbers.
*2 The material separated from the punchcard when forming the hole is known as a chad. If the ballot is not positioned correctly in the voting machine, the incorrect rectangles will be removed. If the chad is not removed completely by the stylus, the tabulation machine may not count the vote. Unlike mechanical lever machines, the VotoMatic system does not have any built-in protection preventing the voter from casting more than one vote for a candidate or ballot measure. In that event, the software is designed not to count the vote at all. The system is subject to mechanical problems. If the mechanical holder is not constructed properly, if its materials have deteriorated through use, if the punchcard has not been pre-scored properly, if the punchcard's manufactured dimensions are not within tolerances, the vote will either not be counted or will be counted incorrectly. The data reader must also be functioning properly, and must be free of extraneous objects, like paperclips, staples and chads, that may fall into it during tabulation. Otherwise votes will not be counted, or will be counted incorrectly. Occasionally, like the similar problems with facsimile machines and copiers, the tabulation machine will grab two cards, rather than one, resulting in counting errors. If the data card reader jams, it is left to the operator to decide whether the votes have been tabulated.
The first major study of the efficacy of the VotoMatic system was performed by Ray G. Saltman in 1975 while he was working for the United States National Bureau of Standards, now known as the National Institute of Standards and Technology. As his report later described it, "[s]erious problems in computerized vote-tallying had been experienced in San Francisco in 1968, in Los Angeles and Houston in 1972, and in other places ..." In the wake of those controversies, and "in recognition of concerns expressed by Congress, and by election officials and the public," the United States General Accounting Office requested the National Bureau of Standards to perform a national study of punchcard voting. Saltman was assigned the project. His study revealed significant problems with the system.
In the ensuing years, additional problems were reported in the use of the pre- scored punchcard system. After press reports of votes improperly being added to a candidate's tally in San Francisco in 1986 because of electrical fluctuations in the equipment, an elimination of the votes of an entire precinct in San Joaquin County in 1984 because of a loose chad jamming the system, the reported incorrect transfer of 15,000 votes from one candidate to another in Orange County in 1980, and numerous other reported problems, the National Bureau of Standards decided to update its study. Saltman was again charged with the project. He issued an updated report in 1988 that buttressed the earlier analysis critical of the use of pre-scored punchcard voting devices. However, the use of the systems continued.
*3 A competing punchcard voting system, Datavote, uses a
