"new" equal protection

[Michael Froomkin - U.Miami School of Law]

Michael McConnell asks whether counting votes by different standards
wouldn't in all cases be a violation of equal protection.

Since this same equal protection violation of materially different ways of
counting votes -- be it old or newly minted -- is precisely what happens
routinely in Florida when some votes are cast using optical recognition
and others (in, we are told, a non-random distribution by wealth and race)
by punch cards which are substantially more likely to result in a valid
vote not being counted, it seems that this question answers itself: to
date, equal protection does not apply (or has not yet been invoked) when
Democratic votes are not counted in Florida.

But perhaps that is just an artifact of pleading and the questions
presented.  If so, we shall be provided with a test of the proposition:
Unless there is a vast and national voting reform and at least state-level
standardization of polling methods, expect a plethora of cases challenging
disparate polling technology.  I can only hope for all our sakes it's done
by pre-election declaratory judgment rather than post-election...

I'd put the question this way: In light of this decision, is there an
argument that using different types of voting systems in a single state
with known different counting error rates is NOT an equal protection
violation -- unless the machines were assigned to precincts or counties on
a random basis that changes each election?


On Wed, 13 Dec 2000, Michael McConnell wrote:

> I sincerely cannot tell whether my esteemed colleagues on this list are
> merely venting their anger about the decision, or whether they think there
> is something new in the Court's equal protection holding. I just don't see
> it. Consider the following hypothetical: Suppose that in a run-of-the-mill
> election for county coroner, some of the votes (let's say, just for fun,
> those in Republican-leaning precincts) are counted under one standard, and
> some of the votes (let's day in Democratic precincts) are counted under a
> more restrictive standard, and it turns out that this difference might
> control the result. Does anyone doubt that this would give rise to a
> successful equal protection claim?
>
> Michael McConnell
> University of Utah College of Law
> 332 South 1400 East Rm. 101
> Salt Lake City, UT 84112
>

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