toledoblade.com --

COLUMBUS - Ohio's continued use of punch-card ballots such as those called into question after the 2000 presidential election in Florida discriminate against African-Americans whose votes are less likely to be counted, a federal appeals court ruled yesterday.

The 2-1 decision by the Cincinnati-based 6th U.S. Circuit Court of Appeals may soon be moot. As of the May 2 primary election, no Ohio voter should be casting a punch-card ballot.

"Hopefully, the state will do this year what the 6th Circuit is telling them, which is, in effect, to get rid of its punch-card and central-count optical-scan systems," said Dan Tokaji, an Ohio State University law professor. He argued the case on behalf of the American Civil Liberties Union of Ohio and plaintiff voters from Sandusky, Hamilton, Montgomery, and Summit counties.

"Every year for the past three years, the state has said it would replace those systems," he said. "Every year, the state has said one thing and done another. I hate to sound like Thomas, but I'll believe it when I see it."

Last November, half of Ohio's 88 counties had been converted to modern voting machinery: either computerized touch-screen or precinct-count optical-scan devices. The conversion is expected to be complete with the other 44 counties on May 2, meeting a deadline set by the federal Help America Vote Act. HAVA was enacted in the wake of the 2000 presidential election.

During the 2000 presidential election, 69 Ohio counties were using punch cards. By 2005, that was down to 31, according to a spokesman for Secretary of State Kenneth Blackwell.

The 6th Circuit overturned the U.S. District Court decision out of Akron that had favored the state, which, in part, cited cost as a reason that it hadn't acted more quickly.

The ACLU has maintained that inner-city precincts containing larger numbers of African-American voters were more likely to still be using punch cards in 2002, two years after the election in Florida showed that votes cast on punch cards were more likely to be discarded because of under or over voting.

"The continued certification of this technology by the secretary of state does not provide the minimal adequate procedural safeguards to prevent the unconstitutional dilution of votes based on where a voter resides," 6th Circuit Judge Boyce Martin, Jr., a Carter appointee, wrote for the majority. "Unequal treatment and unfairness are perpetrated by allowing this technology to remain certified and the state's reasons for maintaining this disparate system are far from compelling."

Although Mr. Blackwell, as the state's chief elections officer, was named a defendant in the suit, he said yesterday the court was preaching to the choir with its decision.

"It was my argument all along to move us out of the punch-card system," he said.

Mr. Blackwell had set a deadline of the 2004 general election for counties to convert to modern voting equipment, using federal funds supplied through HAVA. But the early deadline was repeatedly pushed back.

First, Mr. Blackwell dealt with security questions raised over touch-screen machines. Then the General Assembly added a mandate that such machines be equipped with a paper backup system.

Attorney General Jim Petro's office, which defended the state in the case, said it was disappointed with the ruling and was considering its options.

Both Mr. Blackwell and Mr. Petro are running for the Republican gubernatorial nomination.

As of May 2, voters in 57 counties, including Lucas, will cast their ballots on touch-screen devices. In 31 counties, voters will use precinct-count optical-scan devices, which employ paper ballots read electronically on site. The optical-scan devices challenged along with punch cards under the ACLU lawsuit involved ballots cast at precincts but read at one centralized location.

Contact Jim Provance at:
jprovance@theblade.com
or 614-221-0496.

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