On July 9, the 5th circuit heard oral arguments in Texas Democratic Party v Williams, 07-51064. The issue is whether the U.S. Constitution, especially the Equal Protection Clause, prohibits Texas from using one voting system in some counties that causes many undervotes, while at the same time using other kinds of voting systems in other counties that do not create many undervotes.
Hart’s InterCivic’s eSlate machine does not do a good job, making it clear to voters that if they use the straight-ticket device, and then also vote for an individual nominee of that same party, that they have then erased their own vote for that particular office. In other words, if a Republican voter clicks the choice on the computer screen for the Republican straight-ticket device, and then the voter also votes individually for Kay Bailey Hutchinson for U.S. Senate, the machine (which had previously recorded that voter’s vote for all Republican nominees on the ballot), then deletes the voter’s vote for U.S. Senate!
By contrast, if a voter took the same action on a paper ballot, whether it is counted by hand or by a scanner, the voter’s vote for U.S. Senate would be preserved.
The Texas Democratic Party is asking that the Secretary of State be required to de-certify eSlate until eSlate fixes the problem. The Secretary of State argues that there is no problem, because when the voter who has already clicked the straight-ticket device for one party, then also votes for an individual candidate of that party, the computer screen flashes, “Be aware that you are changing a straight-party choice.” But the Democratic Party argues that this message doesn’t mean much to most voters. The Democratic Party suggests that if the machine said, “Caution: you are no longer voting for Kay Bailey Hutchison”, or “Caution: you are no longer casting a vote for U.S. Senator”, the problem would be alleviated.
The party also complains that the final summary screen the voter sees, if that voter has clicked a straight-ticket option and then proceeded to cast a vote individually for each nominee of that party, is “Straight-Party Republican”, but then the summary screen also lists each office and says “no selection”. The summary screen is what pops up on the screen just before the voter leaves the voting booth. The party says many people will see the summary screen’s message as confirming that they did vote Republican for all nominees, when it is really telling them that they just cast a completely blank ballot.
U.S. District Court Judge Sam Sparks had ruled against the Democratic Party on August 16, 2007. The 5th circuit panel consists of Judges E. Grady Jolley (a Reagan appointee), and Edith Clement and Priscilla Owen (Bush Jr. appointees). At the oral argument, Judge Clement said, “There might be something wrong with the voters if they’re not reading and following instructions.” The evidence shows an undervote rate of 7% for voters who use eSlate and use a straight-ticket device. The decision is expected quickly. It will be especially interesting to see if the decision comments on Bush v Gore. The U.S. Supreme Court said in Bush v Gore that it is unconstitutional for Florida to use different standards in different counties for determining what is a valid vote. The Texas Secretary of State argues that Bush v Gore’s ruling cannot be extended to any other lawsuits. Of course, such a statement is tantamont to accusing the U.S. Supreme Court of having made up a special rule just to decide the 2000 presidential election, instead of a general principle mandating equal treatment of all voters.