Robert Wexler v. Arthur Anderson
2006 U.S. App. LEXIS 15080, 452 F.3d 1226, 2006 WL 1685802 (2006)
Rule of Law:
State election regulations that impose only reasonable, nondiscriminatory restrictions on the right to vote do not violate Equal Protection or Due Process if the state's important regulatory interests justify the specific burdens imposed.
Facts:
- Florida law allows counties to choose between certified voting systems, resulting in 15 counties adopting paperless touchscreen machines while 52 counties utilize optical scan paper ballots.
- State law mandates a two-stage recount procedure for close elections, requiring a 'manual recount' of residual votes (overvotes and undervotes) if the margin of victory is under one-quarter of a percent.
- In counties using optical scan ballots, the manual recount process involves human auditors examining physical paper ballots to interpret voter intent from stray marks or filling errors.
- In counties using touchscreen machines, the machines are designed to prevent overvotes entirely and prompt users to correct undervotes before finalizing the ballot.
- Because touchscreen machines do not produce a verified physical ballot, the state established a specific rule for manual recounts in these counties that relies on printing and verifying internal ballot image reports rather than interpreting physical markings.
- Voters in touchscreen counties generally lack the opportunity to have a human review ambiguous markings for intent during a recount, unlike voters in optical scan counties.
- Congressman Robert Wexler and other plaintiffs challenged this disparity, arguing that the lack of a comparable manual review for touchscreen voters rendered the election system unconstitutional.
Procedural Posture:
- Wexler filed a complaint in state circuit court challenging the certification of paperless voting machines.
- The state circuit court dismissed the action for lack of standing.
- The Fourth District Court of Appeal affirmed the state court dismissal.
- Plaintiffs filed a complaint in the United States District Court for the Southern District of Florida alleging violations of the U.S. Constitution.
- The U.S. District Court initially dismissed the complaint under the Younger abstention doctrine.
- The U.S. Court of Appeals for the Eleventh Circuit vacated the dismissal and remanded the case.
- The U.S. District Court held a bench trial and ruled in favor of the defendants, upholding the regulations.
- Plaintiffs appealed the judgment to the U.S. Court of Appeals for the Eleventh Circuit.
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Issue:
Do Florida's disparate manual recount procedures for touchscreen voting machines compared to optical scan ballots violate the Equal Protection and Due Process clauses by arbitrarily valuing voters in some counties differently than others?
Opinions:
Majority - Kravitch
No, the use of different manual recount procedures based on voting technology does not violate the Constitution because the procedures are reasonable, nondiscriminatory, and justified by the state's regulatory interests. The court reasoned that the plaintiffs fundamentally erred by focusing on the perspective of the 'residual voter' rather than asking whether voters in touchscreen counties were less likely to cast an effective vote overall. The court applied the Burdick balancing test, determining that strict scrutiny was inappropriate because the burden on voters was not severe. The court found that Florida has important regulatory interests in certifying different voting systems to accommodate disabled voters and prevent errors. Because touchscreen machines prevent overvotes and warn against undervotes, the specific type of human review needed for optical scan errors (interpreting stray marks) is unnecessary and impossible for touchscreens. Therefore, the difference in procedures is a necessary consequence of the different technologies and does not constitute arbitrary treatment.
Analysis:
This decision significantly clarifies the application of Equal Protection in the context of voting technology post-Bush v. Gore. It establishes that 'uniformity' in election administration does not require identical procedures across all jurisdictions if the underlying technologies differ. The court emphasizes that the proper constitutional inquiry is not whether every specific procedural step is available to every voter, but whether the overall system burdens the fundamental right to cast an effective vote. By refusing to apply strict scrutiny to reasonable, nondiscriminatory election regulations, the Eleventh Circuit grants states flexibility to adopt new voting technologies (like paperless machines) without being constitutionally mandated to replicate the exact recount mechanisms of older paper-based systems.
