EQUAL PROTECTION FOR VOTES
“Counting all the votes” and “fairness” are catchwords of the now more than five-week-long postelection campaign. These principles have collided repeatedly as the Gore campaign seeks manual recounts and the Bush campaign protests the unfairness of these recounts. “The lack of uniform standards for counting 'votes,'” the Bush campaign argued in its brief to the United States Supreme Court, “means that voters who cast identical ballots in different counties will likely have their ballots counted differently.” The result, according to the Bush campaign's Supreme Court brief, is a violation of the Equal Protection Clause of the Fourteenth Amendment, which “forbids the state from treating similarly situated voters differently based merely on where they live.” If the Bush campaign is right and the Supreme Court accepts their argument, then one outcome of our national exercise in electioneering will undoubtedly be a succession of Supreme Court cases that will change the way we vote in America.
We all agree voters should not be treated differently based merely on where they live. That is why the differences in the Broward County and Palm Beach County standards for hanging chads and dimples seems so disconcerting. But if these different standards upset us, then we should be even more troubled by the fact that the different voting devices used from one county to another have far greater impacts than different standards for manual recounts. Different voting devices not only lead to vastly different numbers of spoiled ballots, they also interact with personal characteristics such as education, infirmity, and voting experience to produce biases in our voting system.
Consider Florida. The Bush campaign is right in saying that there were different standards for counting undervotes (those ballots on which the tabulating machine does not detect a vote) in Broward and Palm Beach