Clarification on equal protection harm

[Michael MASINTER]

Just to keep the factual record straight, it should be noted that during
the statutorily required recount, Seminole County was widely reported to
have supplemented its machine recount with a manual recount of no-vote
ballots, adding some 90+ votes to the Bush margin; it did so on the vote
of its three canvassing board members, who were reported to have conducted
the examination of those ballots outside public view.  My sense, though,
is that this kind of fact made no difference to the BvG majority.

Query:  If the equal protection rights at issue belonged to voters, not
candidates, then shouldn't the use of manual recounts during the mandatory
recount also have been unconstitutional?  And shouldn't the application of
differing standards from county to county in the determination of whether
late arriving overseas absentee ballots were proper have also been
unconstitutional?


Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Fri, 15 Dec 2000, Bill Funk wrote:

> Michael McConnell wrote:
>
> > The equal protection theory is essentially the same as that in Reynolds v.
> > Sims: the government cannot weigh votes differently. There is no need under
> > this line of cases to prove that one identifiable group has been advantaged
> > over another.
>
> Exactly!
>
> > All the ballots cast within each jurisdiction
> > were treated exactly the same way. All voters in each county had the same
> > voting device. All ballots were counted through machine counts.
>
> I believe the second sentence is factually inaccurate, but more importantly, the
> "jurisdiction" for purpose of electing electors in the Presidential election was
> the state of Florida, not counties.  Counties were simply the entity used by the
> state to administer the election.  It clearly wouldn't deny equal protection to
> have different voting devices in different counties with respect to county
> elections, but as to a state-wide election, there is no justification, other
> than administrative convenience, to allow different methods of counting votes,
> which results in differential weight to votes.