Stewart v. Blackwell (356 F. Supp. 2d 791, 2004)

MEMORANDUM OPINION

DOWD, District Judge.

I. Introduction

The highly disputed presidential election in 2000, centered on the issue of which presidential candidate, A Gore or George Bush, was entitled to the critical electoral vote for Florida, gave rise to litigation challenging the use of various forms of balloting procedures. This case involves the plaintiffs’ challenge in Ohio to the use of punch card and “central-count” optical scanning technology.

The case was started in the year 2002. It became obvious that the challenge which championed Direct Record Electronic (DRE) technology as the preferred alternative technology could not be effectively resolved in time for the presidential election in 2004, given the certain appellate challenge to any decision by this Court. However, the plaintiffs successfully moved the Court to decide the claims as expeditiously as possible in view of the approaching municipal elections in Cincinnati (Hamilton County) in 2005. In the meantime, congressional legislation known as HAVA (Help America Vote Act) became effective on October 29, 2002. The Ohio Secretary of State, and a defendant in this case, Kenneth Blackwell has embarked on a campaign to replace both the punch card voting machines and optical scan central-count voting machines with DRE voting machines.

Believing that the plaintiffs are entitled to a judicial response, and in view of the on-going issues relating to various forms of voting technology, the Court scheduled and conducted a bench trial over a five-day period on July 26, 27, and 28, 2004; September 30, 2004; and October 1, 2004. At the conclusion of the bench trial on October 1, 2004, the parties agreed to a deadline of November 15, 2004 for the filing of post-trial briefs. The briefs have now been filed. In preparation for the bench trial, the parties entered into a comprehensive fact stipulation which is contained in Section III of this opinion.

The five day bench trial featured the testimony of Martha Kropf, Dana Walch, Roy Saltman, Richard Engstrom, John Lott, Barabara Tuckerman, and by deposition, Dr. Herbert Asher.

Based on the testimony and exhibits received into the record, the Court makes additional fact findings as set forth in Section IV of this opinion.

Based on the stipulated facts and the additional fact findings of the Court, the Court finds that judgment should and will be entered on behalf of the defendants. The Court’s analysis is set forth in Section V of this opinion.

II. A Summary of the Positions of the Parties

A. The Plaintiffs’ Position

Plaintiffs seek declaratory and injunc-tive relief from Defendants’ certification and use of current balloting systems in four Ohio counties. Specifically, plaintiffs allege that punch card voting and “central-count” optical scanning devices violate their rights under the Due Process Clause, the Equal Protection Clause and (the African-American plaintiffs) their rights under § 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973.

Plaintiffs assert that their Fourteenth Amendment Equal Protection rights are violated by Ohio’s system for voting technology selection which allows counties to choose different types of voting devices. More specifically they argue based on Bush v. Gore, 531 U.S. 98, 105, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000), that then-respective counties’ use of non-notice voting technologies does not afford their vote with the same weight and dignity of the votes cast in Ohio counties that currently employ notice voting technologies. According to plaintiffs, defendants are illegally favoring some voters over others on the basis of residency by certifying and employing notice voting systems in some counties and non-notice systems in others. The effect of this supposed dual system is to dilute the voting strength of certain Ohioans.

Plaintiffs also claim that defendants are violating their Fourteenth Amendment Due Process Right to Vote. They argue that the use of error prone equipment, such as the punch card ballot, arbitrarily deprives them of their right to vote. It does so by subjecting them to a significantly greater risk that their votes will not be counted. Plaintiffs further contend that this election practice is subject to strict scrutiny because it impacts the right to vote. Since there is no legitimate government interest that justifies this system, plaintiffs argue, it violates their Due Process rights.

To prove their Fourteenth Amendment claims, plaintiffs employ statistical data showing that punch card and central-count optical scan machines had higher residual vote rates than other systems used in Ohio in the presidential elections between 1992 and 2000. They note that the data of defendants’ expert Dr. Lott indicates a residual vote rate of 2.4% for punch cards, 1.0% for DRE, 1.4% for lever machines, and 2.0% for optical scan. Plaintiffs’ expert Dr. Kropf produced similar results: 2.29% for punch cards, 0.94% for DRE, 1.04% for lever, and 1.15% for precinct-count optical scan. According to plaintiffs, these statistics show that punch cards and central-count optical scan violate Due Process rights because they are substantially less accurate and violate Equal Protection rights because other Ohio counties are operating the more accurate systems.

The African-American plaintiffs allege that their respective county’s use of punch card ballots violates § 2 of the Voting Rights Act by denying them the right to vote. Section 2 of the Voting Rights Act extends to protect the proper counting and totaling of votes cast. They argue that the intra-county disparate impact punch card ballots have on the likelihood that an African-American’s vote will not be counted amounts to a denial of the right to vote under the Voting Rights Act. According to them, the Court must only compare intra-county vote rates in analyzing their Voting Rights Act claim.

In support of their Voting Rights Act claim, the African-American plaintiffs claim (1) that the defendants’ selection of punch card ballots as a voting device constitutes a state action; (2) that African-Amerieafa voters suffer far higher rates of ballot rejection than do white voters in Hamilton, Montgomery, and Summit Counties, and (3) that there is a causal relationship between the defendants’ selection of punch cards and African-American voters’ higher rates of ballot rejection.

To prove the intra-county ballot rejection disparity between African-American voters and white voters, plaintiffs point to the testimony of Dr. Sailing and the maps he created. These maps show that in Summit and Franklin counties there is a strong correlation between the precincts with high numbers of residual votes and those with a high percentage of African-Americans. Plaintiffs also present several tables summarizing Dr. Engstrom’s analysis to overcome the ecological fallacy.

Plaintiffs rely on data from Franklin County to support the third prong of their analysis. Franklin County, whose voters use DRE machines, has a negligible residual vote rate for whites and below 1% for African-Americans. They assert that Franklin County’s use of DRE machines and lower racial disparity in residual vote rates indicates a causal relationship between the use of punch card ballots and the higher racial disparity in residual vote rates found in the defendant counties. Because these disparities do not arise from intentional conduct of the voter, plaintiffs assert that they have established a vote denial claim under the § 2 of the Voting Rights Act.

B. The Position of the Secretary of State

The Secretary of State contends that plaintiffs lack standing because they have not suffered an injury in fact and that this matter is moot because H.B. 262 and Ohio’s efforts to comply with HAVA adequately address plaintiffs’ complaints. Regardless of whether the claim is moot, he also claims that the African-American plaintiffs have not proven a violation of the Voting Rights Act. In support of this claim, the Secretary of State directs the Court’s attention to plaintiffs’ stipulation that they have not been denied access to the polls and that no evidence was introduced suggesting a denial of the right to vote. He also points to the fact that plaintiffs failed to show that punch card ballots are given exclusively to African-Americans or disproportionately used in African-American precincts. Further,“he suggests that plaintiffs’ failure to establish any of the Senate factors shows they have not met their evidentiary burden. Additionally, the Secretary of State calls into question plaintiffs’ statistical data because it relies on unreliable exit polls.

The Secretary of State, in order to further defeat plaintiffs’ Voting Rights Act claim, posits that the statistical data does not prove a great racial disparity in under-voting through the use of punch card ballots. First, he attempts to discredit plaintiffs’ statistical data by pointing to the fact that it is based on exit polls that were taken weeks after the election. He then references Dr. Engstrom’s testimony that (1) whites in Summit County undervoted at a rate higher than African Americans in Hamilton County, (2) African-Americans in Hamilton County undervoted at a rate lower than, equal to, and higher than African-Americans in Franklin County, and (3) the racial disparity in undervoting in Franklin County (0.81%) was nearly four times higher than in Hamilton County (0.22%). Lastly, he presents the testimony of Dr. Lott and Dr. Asher. Dr. Lott concluded that across years and offices punch card ballots tend to produce fewer undervotes than DRE or lever machines and were nearly identical to optical scan systems. Dr. Asher further concluded that the counties with the highest nonvot-ed ballot rate in the 2000 Presidential election could not possibly have been caused by African-Americans.

The Secretary of State also argues that plaintiffs have not shown a violation of the Fourteenth Amendment. He first contends that regional differences in voting technology choices within a state do not amount to an Equal Protection violation, citing Bush, 531 U.S. at 134, 121 S.Ct. 525 (Souter, J., dissenting). He then argues that the current voting technology is not rendered unconstitutional merely because another system is more accurate at recording votes.

C. The Positions of Hamilton, Montgomery, and Summit Counties Regarding Plaintiffs’ Voting Rights Act Claims

Hamilton, Montgomery, and Summit Counties have Voting Rights Act claims asserted against them. Initially they question the African-American plaintiffs’ standing to assert a Voting Rights Act claim because none of them claim that they were denied access to the polls or that they know their vote was not counted. Montgomery County further questions the standing of Professor Vernellia Randall, an African-American who is registered to vote in Montgomery County, because she did not vote in the 2000 presidential election. Montgomery County additionally suggests that this matter is a non-justicia-ble political question and moot.

Alternatively, these counties argue that they do not violate the Voting Rights Act because an invalid vote does not equate to a denial of the right to vote. They refer the Court to historical instances of vote denial such as poll taxes, grandfather clauses, and literacy tests, and argue that plaintiffs’ assertion of a higher rate of invalid votes does not amount to a vote denial under the Voting Rights Act. Hamilton County points to the varying rates of overvotes for African-Americans in recent local elections to suggest that it is not punch cards but something else that causes the overvotes. Specifically, it cites to the fact that the overvote rate for African-Americans was almost non-existent in the 2001 Cincinnati mayoral election but was comparatively higher in the “vote for nine” 1999 race for Cincinnati City Council and the 2000 Presidential election.

D. The Positions of the County Defendants Regarding Plaintiffs’ Fourteenth Amendment Claims

Plaintiffs also allege that each of the four County Defendants violates the Fourteenth Amendment Equal Protection Rights and Due Process Rights of its citizens. These counties contend that they are not violating the plaintiffs Equal Protection rights because all of the citizens within each county vote using the same voting technology. They further argue that the use of different voting technologies in other counties does not result in their violating plaintiffs’ Equal Protection rights because (1) these counties have no power over the choices made by other counties’ boards of elections and (2) there is no requirement that all counties use the same voting technology.

Montgomery County also contends that its use of punch card ballots does not violate Due Process rights because its residual vote rate is not unacceptable. A residual vote rate is not deemed unacceptable until it reaches 3%. Montgomery County’s residual vote rate in the 2000 presidential election was 2.78% and, therefore, not unacceptable. Sandusky County asserts that it too is not violating plaintiffs’ Due Process rights by using a central-count optical scan system, as opposed to precinct-count optical scan, because there are rational bases for employing the central-count system: cost, space, time, and the polling place staffs lack of familiarity with the machines. Sandusky County further argues that it does not violate Due Process rights because as long as a voter understands and follows the directions given to him or her, every intentional vote cast is counted, regardless of where the vote is counted.

III. The Stipulated Facts and the Court’s Supplemental Fact Findings.

Counsel for the parties engaged in an extensive stipulation of fact including 98 separate paragraphs of stipulated facts. That stipulation is attached as Appendix I. Following the bench trial the Court made additional fact findings in paragraphs 99 through 146, and those additional facts findings are attached as Appendix II.

IV. Summary of Existing Jurisprudence

In the wake of the 2000 presidential election, several suits, including the present action, were filed challenging the use of punch card ballots as violative of § 2 of the Voting Rights Act, the Equal Protection Clause, and/or the Due Process Clause. Additionally, voters filed suits leading up to the 2004 presidential election challenging the adequacy of the voting sys-terns that replaced the punch card ballots. These other cases provide á background for the climate in which this matter is decided.

In Black v. McGuffage, 209 F.Supp.2d 889, 902 (N.D.Ill.2002), the Court denied the defendants’ motion to dismiss with respect to all counts of the plaintiffs’ complaint except the privileges and immunities count. Plaintiffs there sought an injunction prohibiting the use of punch card voting systems and other systems that lack effective error notification. Id, at 894. The plaintiffs alleged that those counties that employed punch cards or optical scan without error notification experienced higher residual vote rates than those counties using optical scan with error notification. Id.' Furthermore, while a majority of Illinois counties used punch cards, the plaintiffs contended that those counties which used punch cards had larger populations of minorities than counties using other systems. Id. As a result, the plaintiffs argued that punch cards had a disparate impact on minority voters. Id. The plaintiffs, therefore, alleged that the use of punch cards and other voting systems which lacked error notification violated § 2 of the Voting Rights Act and the Equal Protection and Due Process clauses of the Fourteenth Amendment. Id.

The court in Black concluded that the plaintiffs had sufficiently alleged a claim under § 2 of the Voting Rights Act because they met the statutory requirements. Id. at 896. It stated that two elements are necessary to show a violation of § 2: “(1) the use of an electoral ‘standard, practice, or procedure,’ and (2) a resulting diminution of the opportunity to African" American and Latino voters ‘to participate in the political process and to elect representatives of their choice.’ ” Id. Accepting the plaintiffs’ facts as true, the court concluded that the plaintiffs as voters residing in predominantly Latino and African American precincts that utilized punch cards “b[ore] a greater risk that their votes [would] not be counted than [did] other voters.” Id. at 897. Because this could significantly diminish the plaintiffs’ participation in the political process, the court found that the plaintiffs had sufficiently alleged a violation of § 2. Id.

Likewise, the court held that if the plaintiffs were able to prove that as a result of different voting technologies “voters in some counties [were] statistically less likely to have their votes counted than voters in other counties in the same state in the same election for the same office,” they would establish a violation of the Equal Protection Clause. Id. at 899. In making this determination, the court reasoned that if the different counties’ choices of different voting systems resulted in significantly different probabilities of their respective citizens having their votes counted, then one person’s vote would be valued over another’s vote. Id. “However, once the State has endowed voting rights to its citizens ... ‘[it] may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.’” Id. at 898 (quoting Bush, 531 U.S. at 104-105, 121 S.Ct. 525). Because this was precisely what the plaintiffs had alleged, they had sufficiently stated a claim for violation of Equal Protection. Id. at 898-899. The court further noted that the plaintiffs allegation of disparate impact on minority groups created “cause for serious concern.” Id. at 899.

Lastly, the court denied the motion to dismiss with respect to the plaintiffs’ substantive Due Process claim. Id. at 901. The plaintiffs alleged that the vote eount-ing procedure was flawed because it irrationally allowed local election officials to assign greater importance to the votes cast by a portion of the electorate through their choice of vote counting procedures. Id. The court held that “a law that allows significantly inaccurate systems of vote counting to be imposed upon some portions of the electorate and not others without any rational basis runs afoul of the Due Process clause of the U.S. Constitution.” Id. Because that is what the plaintiffs had alleged, the defendants’ motion to dismiss was denied. Id. at 901-902.

In Common Cause v. Jones, 213 F.Supp.2d 1106 (C.D.Cal.2001), the court denied the defendant’s motion for judgment on the pleadings against the plaintiffs’ Fourteenth Amendment and Voting Rights Act claims. There, the plaintiffs alleged that, because punch card ballots were less reliable than other voting systems certified by the Secretary of State, individuals living in counties where punch cards were used were denied the right to vote protected by the Fourteenth Amendment. Id. at 1108. Because the counties which chose to use punch card ballots had high racial minority populations, the plaintiffs also alleged that this “vote denial” violated the Voting Rights Act. Id.

The court first held that the plaintiff had alleged facts “indicating that the Secretary of State’s permission to counties to adopt either punch-card voting procedures or more reliable voting procedures was unreasonable and discriminatory.” Id. at 1109. Thus, the defendant was not entitled to a judgment on the pleadings on the Fourteenth Amendment claim. Id. at 1109-1110. The court then stated that the test from Thornburg v. Gingles, 478 U.S. 30, 48-51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), did not apply to the Voting Rights Act claim because it was a vote denial claim. Common Cause, 213 F.Supp.2d at 1110. The plaintiffs failure to allege facts necessary to establish the Thornburg elements; therefore, did not warrant a grant of judgment on the pleadings, and the court accordingly denied the motion. Id.

The’ Ninth Circuit, sitting en banc, reversed a circuit panel’s decision and affirmed the district court’s denial of a preliminary injunction in Southwest Voter Registration Education Project v. Shelley, 344 F.3d 914, 916-920 (9th Cir.2003). There, the plaintiffs challenged the use of punch card ballots in some California counties in the gubernatorial recall election of 2003. Id. at 916. They argued that the use of punch card ballots violated the Equal Protection Clause and § 2 of the Voting Rights Act. Id. In. deciding the Equal Protection claim, the court noted that it had not previously had occasion to consider, this Equal Protection issue and that in Bush, 531 U.S. at 109, 121 S.Ct. 525, the Supreme Court stated that it was not deciding whether local entities may develop different systems for implementing elections. Id. at 918. The court, therefore, could not conclude that the district court had abused its, discretion in holding that the plaintiffs had failed to establish a clear probability of success on the merits. Id.

Furthermore, while, the court concluded that the plaintiffs, had made a stronger showing of success on their Voting Rights Act claim, the court denied the injunction because it could not say they had, shown a strong likelihood of success. Id. at 918-919. The plaintiffs alleged two things (1) that minority voters disproportionately lived in punch card counties and (2) within those counties, punch card machines discarded minority votes at a higher rate. Id. at 918. Because there was significant dispute as to the degree and significance of any racial disparity, the court could not say that plaintiffs had shown a strong likelihood of success on the merits. Id. at 918-919. The court then determined that the district court did not abuse its discretion in concluding that any hardship the plaintiffs would suffer was not outweighed by the interests of the state and its citizens in continuing the election. Id. at 920. Therefore, the preliminary injunction was denied. Id.

In Weber v. Shelley, 347 F.3d 1101, 1103 (9th Cir.2003), the court affirmed the district court’s grant of summary judgment to state and county officials against a voter who was challenging the lack of a voter verified audit trail. The voter there alleged that the DRE machine’s lack of a voter verified audit trail resulted in a violation of her Equal Protection and substantive Due Process rights because it rendered the DRE more prone to fraud. Id.

The court first determined that because the lack of a voter verified audit trail did hot severely affect the right to vote, it was not subject to strict scrutiny but only rational basis. Id. at 1106. The court then stated that “it is the job of democratically-elected representatives- to weigh the pros and cons of various balloting systems. So long as their choice is reasonable and neutral it is free from judicial second guessing.” Id. at 1107. Because the state and the county had a reasonable, politically neutral, and non-discriminatory basis in choosing the voting system, its choice survived the rational basis test. Id.

In Wexler v. Lepore, 342 F.Supp.2d 1097 (S.D.Fla.2004), after a bench trial, the court held that Florida’s use of different voting systems did not violate the Equal Protection clause. Florida requires a manual recount of ballots if the margin of victory is one-quarter of one percent or less. Id. at 1099-1100. Currently only optical scan and DRE voting systems are certified for use in Florida. Id. The plaintiffs in Wexler argued that because the DRE machine did not produce a paper trail, their Equal Protection rights would be violated if a manual recount ensued. Id. at 1106. While optical scan ballots could be reviewed and interpreted for stray marks, there was no basis for interpretation of a DRE ballot image. Id. at 1106. The court noted that the problem in Bush v. Gore was a lack of uniform standards for determining voter intent with respect to each type of machine, which resulted in disparate standards being applied to identical types of ballots. Id. at 1106-07 (discussing Bush, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388). The court, therefore, held that the state had satisfied the Equal Protection requirements because it had established uniform manual recount standards and procedures to be used throughout the state for each system. Id. at 1108.

The rules promulgated pursuant to the amended statutes comply with the requirements established by Bush v. Gore. Defendants have prescribed uniform, nondifferential standards for what constitutes a legal vote under each certified voting system, and have established procedures for conducting a manual recount of overvotes and undervotes in the entire geographic region.

Id. at 1108.

V. The Court’s Ruling

A. The Setting for the Court’s Decision

The Court views this case as one of extreme importance as it questions the validity of election machinery and raises the question of the extent to which the judiciary should be involved in issues relating to the integrity of the voting process.

Since the 2000 elections, to this Court’s understanding, there has been no other case tried on the merits as in this case. It is the Court’s view that the presentation of the testimony of the experts, coupled with the parties’ stipulated facts as set forth in Appendix No. I and the Court’s additional fact findings as set forth in Appendix No. II, provide an appellate court the opportunity to write on the issues raised by the plaintiffs and the defenses provided by the defendants in a comprehensive fashion and certainly the opportunity to disagree with this Court’s analysis.

The defendants have argued a lack of standing on the part of the plaintiffs to obtain the ruling sought, that is, that the use of punch card voting technology violates either Due Process or fails to provide equal treatment and additionally that the use of the punch card voting technology in Ohio violates the Voting Rights Act. The defendant Secretary of State has also argued that the controversy is moot because of his intention to have DRE voting technology in place for Ohio by the general election in 2005.

The court is of the view that the defendants have the better argument on the issue of standing, but declines the invitation to dismiss the case on standing. The court also declines to dismiss the case on the issue of mootness, but rather will decide the case on the merits. It is entirely possible that by the time the case is before the Sixth Circuit, it will be moot or, alternatively, the Sixth Circuit may conclude, as argued by the defendants, that the plaintiffs lack standing to pursue the constitutional claims or the Voting Rights Act claim. By the same token, if the Sixth Circuit should come to a conclusion on the merits of the controversy, it is this Court’s view that the extensive fact findings, both by stipulation and by reason of the Court’s additional fact findings, provide sufficient material for a thorough appellate review.

B. The Court’s Post Trial Preliminary Observations

1. There is a continuum in voting practices across the ages from voice vote to paper vote to lever voting to computer voting. The struggle today continues with efforts to improve on computer voting.

2. The trend away from paper balloting seems to be motivated by a desire for instant results on election night rather than waiting for the laborious task of counting paper ballots.

3. The common factors that accompany a higher residual vote rate are the extent of the education and income level of the voters. The lower' the educational level and the lower the income level, the higher the residual vote is in comparison with other counties demonstrating a higher educational level and income level. Those factors apply without regard to race. See Fact Findings 125-134.

4. Plaintiffs’ Exhibit 35 reflects the residual vote rate in the presidential race in the year 2000.' The higher percentage of residual votes using punch card voting technology when compared to other technologies, is, in the opinion of plaintiffs’ experts, the result of accidental rather than intentional voting.

5. The plaintiffs’ case rests on the initial premise that a high percentage of the residual votes in the Ohio 2000 presidential election using punch card voting technology is accidental as opposed to intentional.

6. The plaintiffs contend that the punch card technology is fatally flawed because it is a non-notice system.

7. The plaintiffs contend that because the incidence of residual votes using punch card technology is higher than with other voting technologies in Ohio, that incidence coupled with non-notice constitute constitutional violations, either under a Due Process or Equal Protection analysis and require federal judicial intervention and a remedy ordering that punch card voting machines no longer be used in Ohio.

8. The DRE voting technology, advanced by the plaintiffs as the appropriate constitutional alternative to punch card voting technology, also has its limitations. First, the use of the technology is dependent upon electrical power. Second, the technology is not available for absentee balloting in all situations. Third, there remains the problem of “premature voting.” Fourth, there is at least the claim that the DRE voting technology is subject to computer manipulation.

9.The plaintiffs’ analysis as to the election results in Ohio is limited to the presidential election in 2000 and only includes four counties. The study of Dr. Lott, defendants’ expert, makes a strong case for the proposition that punch card voting technology fares quite well in comparison to other technologies when considering drop-off or residual vote in elections beyond that of the presidency for the years 1992,1996, and 2000.

10. The belief that the system of choice should be a “notice system” takes the view that the punch card ballot system is “non-notice” because the experts in the field who promote the use of “notice” systems have chosen to so identify the punch card system as “non-notice,” even though the voter has every opportunity to check the punch card ballot before submitting it to the election official at the polls and to be given a new ballot if a mistake is discovered.

11. A flaw in the punch card ballot is its fragile nature and the fact that running the punch card ballots repeated times through the counting machinery will result in different results.

12. The optical scan central-count system in place in Sandusky County suffers from the problem of uncertain markings on the ballot as indicated in the testimony of the Board of Elections Official from Sandusky County.

13. The notice system envisioned by House Bill 262 adopted by the Ohio Legislature carries with it no printing of a receipt accurately recording the voter’s choices and because of the belief that such a paper trail might result in pressure on the voter to show the voter’s choices to the employer, spouse, parent, union, etc.

C. The Court’s Ruling

The right to vote is central to our freedoms. Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). The public’s confidence in the integrity of the vote tabulation is absolutely essential to the respect we, as Americans, accord our elected officials. The governmental control of the voting process is bestowed primarily on state government. In turn, in Ohio, the voting process is supervised by the elected Secretary of State, in this case the defendant Kenneth Blackwell. But the Ohio Legislature has granted primary control and management of elections, local, state and federal, to the 88 County Boards of Elections.

The primary thrust of this litigation is an attempt to federalize elections by judicial rule or fiat via the invitation to this Court to declare a certain voting technology unconstitutional and then fashion a remedy.

This Court declines the invitation. Voting has been on a continuum in this country over two centuries. First, only white males enjoyed the privilege. Then, suffrage was extended to non-whites, but only after a bitter Civil War. Women did not obtain the right to vote until after the conclusion of World War I. It was not until the aftermath of the assassination of President John F. Kennedy in 1963 that African-Americans had a realistic opportunity to vote in certain areas in the country.

Voting has gone from oral votes, to paper ballots, to lever machines and now, in the era of computers, to the use of computer technology. The determination of the applicable voting process has always been focused in the legislative branch of the government. See Weber v. Shelley, 347 F.3d at 1105-07. In the Court’s view, subject to constitutional amendment, that is where the determination should remain.

Turning now to the issues at hand, the Court finds that the plaintiffs have failed to make a case for judicial intervention with respect to the challenged voting technologies in this case, ie., the punch card voting technology in use in Hamilton, Montgomery and Summit Counties and the central-count optical scan technique in use in Sandusky County.

While it is true that the percentage of residual or nonvoted ballots in the 2000 presidential election ran slightly higher in counties using punch card technology, that fact standing alone is insufficient to declare the use of the system unconstitutional. Moreover, the highest frequency in Ohio of residual voting bears a direct relationship to economic and educational factors, negating the Voting Rights Act claim against the three counties Hamilton, Montgomery, and Summit.

In arriving at these conclusions, the Court accepts for the purpose of these conclusions, standing on the part of the plaintiffs, and makes the following pivotal findings.

1. The use of the punch card voting technology is neither confusing nor difficult to operate.

2. The testimony of Dr. Kropf, accepting as accurate the data from the NES and VNS studies (see Fact Finding No. 100), leads to the conclusion that use of the punch card voting technology results in some small fraction of voters mistakenly failing to cast a ballot for the office of president in the election in the year 2000. The analysis follows.

(a) Dr. Kropfs report, Exhibit # 1, concludes with the following opinion:

17. Thus, the survey evidence we analyze indicates that differences across racial groups in intentional undervoting are insignificant, controlling for other factors and differences associated with income, while statistically significant, are relatively small. This evidence suggests that accidental undervoting and overvot-ing account for most of the invalidated presidential ballots in poor and minority precincts. As indicated before, one of the most likely sources of accidental un-dervotes is voting equipment. (Emphasis added)

(b) Earlier in her report, Dr. Kropf discussed Incidence of Intentional Undervot-ing in the following paragraphs:

6. Invalidated votes occur as the result of undervotes (where voters intentionally or unintentionally record no selection) or overvotes (where voters select too many candidates, thus spoiling the ballot). Invalidated votes in the presidential contest may occur for several reasons. Extensive empirical evidence has found that accidental un-dervotes and overvotes may occur because of faulty voting equipment, as alleged in this case. However, some of the invalidated votes occur when voters intentionally do not cast a vote in a particular race. Voters may cast intentional undervotes in presidential contests for several reasons including alienation from the political process or because they came to the polls to vote for another office on the ballot (senate or a local office such as dogcatcher) but did not have the time or energy to learn who to vote for in the presidential contest.

7. When just examining ballots,' talking to election officials, or analyzing precinct- or county-level data, it is not possible to distinguish intentional from accidental undervotes. Voter self-reports represent the only systematic way to estimate the incidence of intentional undervoting. Survey questions from the National Election Studies over a period of 20 years (NES) and from the Voter Research and Surveys exit polls (VRS, more familiarly known as Voter News Services — VNS—as it was known until 2002) are used here to estimate the number of intentional undervoters. Based on responses to these surveys, we found that a minimum of one-ninth, but no more than two-fifths of invalidated presidential votes are accounted for by intentional undervoting.

[Footnotes omitted].

(c)Against that background, Plaintiffs’ Exhibit 35, attached as Appendix III, and recording the residual vote in Ohio on a county-by-county basis for the office of the President in 2000, bears scrutiny. The percentage of residual votes using Punch Card Votomatic machines was 2.3% across the state, meaning that out of 1000 voters, 23 did not cast a vote for any candidate in the 2000 presidential election. By the same token, the residual vote using electronic machines was 0.7%, meaning that out of 1000 voters, 7 did not vote for any candidate for the president.

(d) Upon acceptance of Dr. Kropfs determination in paragraph 7 above and using the minimum of 1/9 factor and multiplying the 23 nonvotes by 1/9 (.11) the result is a determination that approximately 2.5 persons out of 1000 intentionally did not vote for the office of the presidency and using the two-fifths percentage, then slightly over nine persons out of 1000 intentionally did not vote for the presidency. Then applying the minimum/maximum numbers used by Dr. Kropf in paragraph # 7, the accidental nonvote using punch card technology in the presidential election in the year 2000 ranged from a high of over 20 votes out of 1000 to a low of 14 votes out of 1000. Under either analysis, the residual vote based on accidental nonvoting with punch card technology is higher than the residual vote using the electronic voting machine; i.e., seven out of 1000 votes cast. Thus, the number of accidental nonvotes, under Dr. Kropfs analysis, would range from a minimum of seven to a maximum of thirteen in a group of 1000 voters.

(e) Viewing the plaintiffs’ case in a light most favorable to them, leads to the conclusion that seven to thirteen voters out of 1000 using punch card technology accidentally failed to record a vote in the year 2000 in the presidential election. Such a de minimis conclusion, assuming arguendo that it is justified, fails to prove a constitutional violation, either on a Due Process or Equal Protection analysis..

3. To label the punch card voting technology a non-notice system is to ignore the reality that the careful voter has every opportunity to scrutinize his or her ballot after removal from the voting tray to determine if a mistake has been made in the context of an undervote or an overvote or a mistaken vote and to request a new ballot in the event of a recognized mistake. While a DRE voting technology system, when finally adopted for the state of Ohio, will provide the voter a better recognition of a nonvote and prevent a mistaken over-vote, that forthcoming apparent improvement does not justify a declaration that the punch card technology is unconstitutional.

4. The highest level of residual voting is located in counties in Ohio with a very small African-American population which indicates that residual voting is not race-oriented.

D. Additional Legal Determinations

In addition to these findings, the Court also reaches the following legal determinations regarding plaintiffs’ Voting Rights Act and Equal Protection claims, which further support the Court’s ruling that the plaintiffs have failed to make a case for judicial intervention.

1. Plaintiffs’ Voting Rights Act Claims

Plaintiffs’ Voting Rights Act claims fail because their alleged injury does not amount to a vote denial under § 2 of the Voting Rights Act. Section 2(a) of the Voting Rights Act prohibits the use of any electoral practice or procedure that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a). Under Section 2(b), an election practice or procedure violates Section 2(a) whenever, based on the totality of the circumstances, members of a protected class have less opportunity to participate in the political process than other members of the electorate. 42 U.S.C. § 1973(b).

A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to partic-ipátion by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

Id. There are two separate and distinct theories under which a plaintiff can assert a claim under the Act, vote denial and vote dilution. See Holder v. Hall, 512 U.S. 874, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994); Farrakhan v. Washington, 338 F.3d 1009 (9th Cir.2003). Plaintiffs here only allege a claim of vote denial. See Plaintiffs’ Mem. Opposing SJ, pg. 6, Doc. No. 187 (“In their summary judgment brief, the Plaintiffs made clear that they were asserting only a vote denial claim, not a claim for vote dilution.”). A vote denial arises when a state, or a municipality employs a “practice or procedure” that results in the “actual” denial of the-right to vote on account of race. 42 U.S.C. § 1973(a); see also Muntaqim v. Coombe, 366 F.3d 102, 105 (2d Cir.2004).

Here, none of the plaintiffs, including the African-American plaintiffs, claim that they have been denied access.to the polls. Rather, the African-American plaintiffs contend that punch card ballots subject them to a greater probability that their votes will not be counted, than whites. They do not argue, that punch card ballots are employed disproportionately in, African-American areas of the state, indeed punch card ballots are widely implemented throughout Ohio, including in counties where less than 1% of the population is African-American. Furthermore, in Hamilton, Montgomery, and Summit Counties, all voters, be they- African-American, white, or otherwise, use punch card ballots.

When coupled with the previously referenced de minimis effects of the punch card ballot, these facts do hot allow" this Court to conclude that an “actual” denial of the right to vote on account of race occurs. All voters in a county, regardless of race, use the same voting system to cast a ballot, and no one is denied the opportunity to cast a valid vote because of their race. Thus, African-American voters have the same opportunity to participate in the political process as other members of the electorate. The Court, therefore, holds that the plaintiffs - have not established their vote denial claim.

2. Plaintiffs’ Equal Protection Claims

The Court further notes that the operation of different voting systems by different counties within the same state does not amount to a violation of the Equal Protection Clause. The Equal Protection Clause provides that once a state has granted its citizens the right to vote, it “may not ... value one person’s vote over that of another.” Bush, 531 U.S. at 104-105, 121 S.Ct. 525 (per curiam). Local variety in voting technology, however, does not violate the Equal Protection Clause, even if the different technologies have different levels of effectiveness in recording voters’ intentions, so long as there is some rational basis for the technology choice. Id., at 134, 121 S.Ct. 525 (Souter, J., dissenting).

It is trae that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on.

Id. “Rational basis review does not require us to identify the legislature’s actual rationale for the distinction; rather, we will uphold the statute if ‘there are plausible reasons for [the government’s] action.’ ” Hamama v. Immigration & Naturalization Serv., 78 F.3d 233, 237 (6th Cir.1996) (quoting United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980)). Thus, so long as there are plausible reasons for the maintenance of different voting mechanisms, that practice will not be considered unconstitutional.

Here, defendants have offered reasons for their continued use of punch card ballots. Defendants suggest that the punch card ballot has been a cost effective vote tabulating device. They have further indicated some concern regarding the security of DRE machines that the machine vendors are currently resolving. While DRE machines are certified for current use, they have not been HAVA certified by the Secretary of State due to security concerns. The Court finds defendants’ cost and security reasons for the use of punch card ballots plausible.

Furthermore, HAVA requires that polling places have a DRE machine for use by disabled voters. 42 U.S.C. § 15481(a)(3). The Secretary, therefore, did not require the replacement of punch card ballots with precinct-count optical scan systems because a county may determine that it desires all of its voters to be able to cast their votes on the same machines. Because no DRE machines have been HAVA certified, a county could wish to await certification before purchasing DRE machines to avoid the security concerns and future expense in updating the machines. The Court finds these reasons for delaying the replacement of punch card ballots, plausible and reasonable. The Court, therefore, holds that there is a rational basis for defendants’ continued use of punch card ballots.

Moreover, Sandusky County’s use of central-count optical scan also has a rational basis. The Court heard the testimony of Barbara Tuekerman, who stated that Sandusky County uses central-count optical scan because of the cost of buying, storing, and moving the larger number of machines necessary for implementing the precinct-count optical scan technique. She further indicated that the optical scan system was chosen because of its relative simplicity for the voter, as compared to DRE machines. Additionally, she noted that the poll workers would not be familiar with the.optical scan machines and, therefore, would be unable to fix a machine if it were to, breakdown. Thus, the Court finds that there are plausible reasons for Sandusky County’s use of the central-count optical scan technique, and, therefore, it has a rational basis.

As the Court has previously noted, voting technology has been a continuously developing aspect of civic culture. Unfortunately, we have yet to produce the perfect voting system, one that allows- for immediate error-free results. If states were not permitted-‘to employ different types of voting technologies within their borders, this development could very -well come to a halt.

JUDGMENT FOR THE DEFENDANTS.

APPENDIX I

PRETRIAL STIPULATION OF FACT SUBMITTED BY PARTIES

1) Plaintiffs, .Erin Otis and Vernellia • Randall,.are citizens of Ohio and registered voters who reside in Montgomery-County.

2) Plaintiffs, Howard Tolley and Art Slater, are citizens of Ohio and registered voters who reside in- Hamilton County:

3) Plaintiffs, Effie Stewart and Marco Sommerville, are citizens of Ohio and registered voters who reside in Summit County.

4) .Plaintiff, Linda See, is a citizen of Ohio and registered voter who resides in Sandusky County.

5) Plaintiffs, Randall, Slater, Stewart and Sommerville are African-Americans:

6) Defendant, J. Kenneth Blackwell, is the Secretary of State of Ohio and chief elections officer of the State of Ohio.

7) Defendants, Raymond Butler, Geraldine Lewis and Larry Loutszenhiser are members of the State Board of Voting Machine Examiners for the Approval of Electoral Marking Devices.

8) Defendants, Alex Arshinkoff, Joseph Hutchinson, Wayne Jones and Rus Pry are members of the Summit County Board of Elections.

9) Defendant, Christopher Heizer is Director of the Montgomery County Board of Elections, Defendant Stephanie Harsman is Deputy Director of the Montgomery County Board of Elections, and Defendants, Sue Finley, Thomas Ritchie, Sr., James Nathenson, and Dennis Lieberman are members of the Montgomery County Board of Elections.

10) Defendants, Timothy Burke, Michael Barrett, V. Daniel Radford and Todd Ward are and at all relevant times were members of the Hamilton County Board of Elections.

11) Defendants, Harry Heyman, Thomas Yonker and John Rettig are and at all relevant times were members of the Sandusky County Board of Elections.

12) Pursuant to Ohio Rev.Code Ann. § 3506.06(B) (Anderson 2003), Defendant, J. Kenneth Blackwell has certified and Defendant, Ohio Board of Voting Machine Examiners (“State Defendants”) have approved a variety of voting systems for use in Ohio elections, including equipment that contains a feature which gives voters notice of overvotes and/or undervotes and also equipment that does not contain such a feature.

13) The election systems that State Defendants have certified and that county officials currently utilize are: 1) punch card voting; 2) optical scan voting; 3) direct record electronic (or “DRE”) voting; and 4) lever machines (also known as “automatic voting machines”).

14) Ohio is pervasively a punch card voting state. Sixty-nine (69) of Ohio’s 88 counties use punch card voting. Those 69 counties include 72.5% of the states’ registered voters, and 74% of the 11,756 precincts in the State of Ohio.

15) Among the 19 non-punch card counties in the State of Ohio, 11 use optical scan equipment, six use electronic voting equipment, and two use lever machines.

16) Some voting systems have a feature which provides some form of active feedback from a ballot reader that instantly informs a voter of potential errors on her ballot and allows the voter to make any needed corrections. This feature is commonly know as a “second chance” feature.

17) Most counties in Ohio do not utilize voting machines which have the described “second chance” feature.

18) Punch card voting machines do not provide voters with actual notice of overvotes and undervotes.

19) The punch card system relies on a ballot card with pre-scored, square perforations or “chad.” The names of candidates are not on the ballot card, but each chad is assigned a number which appears in small type on the ballot card. The ballot card has a stub at one end, with two holes that allow the card to be held in place over pins, when the ballot is inserted into the “Votomatic” device. This device is placed on a table in front of the voter and holds the ballot card during the voting process. The device has attached to it a loose-leaf booklet, with the names of candidates or other items to be voted on listed in the booklet. In the center of the booklet is a slot which should line up with columns in the ballot card. Along the slot are holes. If the ballot card is correctly positioned within the device and the device has been correctly assembled, each chad lies beneath a different hole. A voter casts his or her vote by placing the ballot card in the device, and exerting pressure on a stylus through the hole to “punch” chad in the ballot card corresponding to the desired choice. After the voter has completed the voting process, he or she removes the card from the device. The stub is removed from the ballot. The cards are thereafter run through a mechanical tabulator and recorded by a computer.

20) Hamilton, Summit, and Montgomery Counties are among the 69 counties that use punch card voting equipment.

21) There are two types of optical scan systems used in Ohio: “central-count” optical scans, and “precinct-count” optical scans. Precinct-count optical scan systems have an error-correction feature which gives voters a chance to discover and correct possible mistakes at the poll, while central-count optical scan systems does not have such a feature.

22) In the 2000 election, Sandusky County used a punch card voting system. Beginning with the 2001 election and continuing for all subsequent elections, Sandusky County has utilized a central-count optical scan system.

23) Electronic or “DRE” voting machines can be programmed to alert voters that they have not made a choice in a particular race. DRE technology advises voters of the choices they have made, showing whether they have undervoted, and gives them a message allowing them to review and verify their choices before casting their votes. Additionally, DRE technology can be programmed to prevent overvoting.

24) An “overvote” occurs when a voter registers more than one choice for a candidate in a particular race and thereby disqualifies his or her vote for that particular race. An “under-vote” occurs when a voter does not mark a ballot in a particular race or votes for fewer than the allowed number of candidates. “Residuals votes” are overvotes and undervotes combined.

25) The counties in Ohio experiencing the highest percentages of residual votes in the 2000 presidential election were those in which voters used punch card ballots, while the counties experiencing the lowest percentage of residual votes in this election used other technology. The 29 counties, in Ohio with the highest residual vote percentages in the 2000 presidential election were all counties that use the punch card method of voting. The seven counties with the lowest residual vote percentages in the 2000 election were all counties that did not use punch cards as their primary voting system.

26) The information contained in Tables 1-6 of John Lott’s Report is accurate.

27) The information contained in Tables 1 and 2 of Martha Kropf s Affidavit is accurate.

28) In the 2000 presidential election, the statewide residual vote rate was 1.88%.

29) The information contained in the Summary Report for the 2000 election in Ohio is accurate. See Doc. No. 187, Appendix E.

30) Some residual votes occur when voters intentionally choose not to cast votes in a particular race. Examining ballots does not allow for intentional and unintentional undervotes to be distinguished.

31) The information contained in Table 1 of Kropf s Report is accurate.

32) The three counties that are the subject of Plaintiffs’ Voting Rights Act claim, Hamilton, Summit and Montgomery Counties, all use the Voto-matic punch card voting system.

33) The demographic information for Hamilton, Summit, Montgomery and Franklin Counties contained in Richard Engstrom’s Report is accurate.

34) The Census 2000 Summary for Hamilton, Summit and Montgomery Counties is accurate.

35) Dr. Richard Engstrom used three analytic procedures to assess the extent to which the African-American voters overvoted or undervoted at different rates than non-African-American voters in each of these counties. Homogeneous precinct (“HP”) analyses simply report the percentage of the voters that over-voted or undervoted in the precincts in which over 90 percent of the voting age population was not African American and in those in which over 90 percent was African American. Ecological Regression (“ER”) analy-ses provide estimates of these rates for African American and non-African American voters based on the votes cast in all of the precincts in an election. The third methodology is called Ecological Inference (“El”). This is an estimation procedure that also takes into account all of the precincts in which votes are cast.

36) The information concerning overvot-ing in Hamilton and Summit Counties contained in Engstrom’s Report is accurate.

37) The information concerning under-voting in Hamilton and Summit Counties contained in Engstrom’s Report is accurate.

38) The information concerning overvot-ing and undervoting in Montgomery County contained in Engstrom’s Report is accurate.

39) The 2000 Ohio Census Data giving rise to State Defendants’ Table of residual vote rates in fourteen Ohio Counties is accurate.

40) Adams County, which has a total of 48 African-Americans living in the entire county, had 492 residual votes for President in the 2000 Presidential Election. Holmes County, which has 127 African-American residents, had 792 residual ballots in the 2000 Presidential election. Jackson, Meigs, Monroe, Pike, and Vinton Counties also had more residual votes for President in the 2000 election than African-Americans living in the jurisdiction.

41) African-Americans make up 27.4% of the population of Cuyahoga County, and there are more African-Americans living in Cuyahoga County than there are people in 83 of Ohio’s 88 Counties.

42) In the 2000 presidential election, Cuyahoga County used punch cards.

43) Delaware County, Ohio uses punch cards while Franklin County uses electronic voting machines and, in the 2000 elections, Delaware County had 55,959 total votes cast and 55,-403 votes cast for President for a residual vote total of 556 votes or 0.99% while Franklin County had 417,800 total votes cast and 414,074 votes cast for President for a residual vote total of 3,726 votes or 0.89%.

44) Shortly after the effective date of the Help America Vote Act (“HAVA”), Ohio Secretary of State J. Kenneth Blackwell reconfigured his office and required many of his senior staff to focus on implementing HAVA in the State of Ohio.

45) In May of 2003, Secretary Blackwell’s Office finalized Ohio’s HAVA Plan and published the document for the public’s review.

46) In September 2003, the Secretary of State’s Office qualified the following four vendors to offer voting devices in Ohio: 1) Sequoia Voting Systems; 2) Diebold Elections Systems; 3) Election Systems & Software; and 4) Maximus/Hart Intercivic/DFM Associates, pending a security review for all prospective voting devices.

47) The security reviews revealed that there were 57 potential security risks within the software and hardware for prospective voting devices and, in December 2003, the Secretary of State ordered the qualified voting device vendors to resolve the identified security concerns.

48) The Ohio Secretary of State’s Office submitted a request to the State’s Controlling Board for release of monies to begin the process of replacing the State’s existing voting technologies, and the request was temporarily delayed. The Ohio General Assembly created a House-Senate Ballot Security committee to ensure that all replacement machines will provide accurate, reliable and tamper-proof results.

49) On May 7, 2004, Governor Bob Taft signed H.B. 262 into law.

50) Punch card voting equipment in Hamilton County is maintained on an ongoing basis and it is cleaned at least annually by having the displaced chad removed from the interior tray. The cleaning includes sharpening the styluses in advance of every election.

51) Hamilton County poll workers are trained on how to set up the precinct polling location, how to conduct the election, and what to do when the polls close.

52) Hamilton County poll workers are instructed to ask every voter if they require assistance or would like a demonstration on how to cast a valid vote.

53) All Hamilton County polling locations have a demonstrator voting machine so that voters may practice prior to voting.

54) Hamilton County poll workers are trained on provisional balloting.

55) Hamilton County poll workers are trained on what to do with a soiled or defaced ballot.

56) There are voting instructions permanently affixed to all individual voting booths in Hamilton County. Further, instructions are included on the ballots themselves and handouts of the instructions are available to the voter.

57) The instructions in the booths and on the ballots in Hamilton County are mandated by the Secretary of State.

58) The voting ins