The Way We Vote: The Local Dimension of American Suffrage

5. Exclusion, Equality, and the Local Dimension of American Suffrage

120 5 Exclusion, Equality, and the Local Dimension of American Suffrage No democratic value is more important than a state’s obligation to treat its citizens equally. Steven F. Huefner, Daniel Tokaji, and Edward B. Foley (2007) Unavoidable inequalities in treatment, even if intended in the sense of being known to follow ineluctably from a deliberate policy, do not violate equal protection. Griffin v. Roupas (2004) When you get these minutes, you almost have to be a lawyer to understand them. Louisiana parish elections official, explaining the need to interpret court minutes in order to determine whether or not a person is disenfranchised (2005) A“Brave New World”? Whereas the lasting images of the 2000 presidential contest were Palm Beach County’s butterfly ballot and the faces of beleaguered recount officers peering deep into the dimples of chad, the 2004 election gave us the voters of Ohio. Some city voters gave up after inadequate numbers of voting machines forced them to stand in line for hours, while their peers in nearby suburban precincts had access to plenty of machines.1 Only because George W. Bush carried Ohio by a margin of more than one hundred thousand votes were we spared “electoral meltdown” in a second straight presidential election.2 This phenomenon recurred in 2008, with some localities in at least half a dozen states experiencing hours-long lines at the polls—but Barack Obama’s edge exceeded that all-important “margin of litigation.” Exclusion, Equality, and Local Dimension 121 Americans now understand that the right to vote is constituted by local administrative practices, and evidence of discrimination and exclusion seems to be everywhere: malfeasance, misfeasance, ignorance, or inadequate machinery disadvantaging the blind, the disabled, non-English speakers, firsttime voters, and others at every step of the registration and voting process. Even before the 2000 election dispute had concluded, some saw that the goal was not equal protection for voters but “equal protection for votes”—that is, for ballots themselves.3 In Bush v. Gore, the Supreme Court did rule that the mechanics of Florida’s presidential election had to meet the standards of equal protection, but the Court strove mightily to limit the precedential power of that holding, warning that the judgment was “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”4 “Rehabilitationist” interpreters of Bush v. Gore hoped the decision might lead to a new level of equality and harmonization in voting practices, and they got a boost in 2006 when the Sixth Circuit Court of Appeals relied on Bush v. Gore in ruling that the use of deficient and error-prone voting machines in some Ohio counties may have violated the Equal Protection Clause.5 (Ohio replaced the machines, and the case was eventually dismissed as moot.) The appeals court observed that while some authors consider such cases “simply variations of old challenges,” others “have suggested that these types of voting rights challenges are taking us into a brave new world.”6 But generally, Bush v. Gore has proved a weak precedent , failing to “usher in a new era of searching equal protection review of electoral practices” in the federal courts.7 Contemporary challenges are more likely to emphasize the Voting Rights Act, the National Voter Registration Act, the Help America Vote Act (HAVA), or various state laws. Americans have periodically engaged in closely focused scrutiny of election administration since the nation’s founding. But together with statutory and doctrinal change, the growth of advocacy organizations, and new communications technologies, the difficulties that have dogged recent elections have placed the mechanics of suffrage at center stage as never before, and equality is often the focus. Recall Justice Robert Jackson’s concern that “small and local authority may feel less sense of responsibility to the Constitution.”8 Jackson was talking about freedom of expression, but his words are an apt summary of prevailing assumptions about local authority and fairness in election administration as well. Many Americans seem to have concluded that locally varying suffrage practices are a toxin to be expelled, a flaw that impedes progress toward national equality and inclusion even where officials do not act in bad faith. While localism in voting procedures may have a romantic appeal, “it works against the strong idea of equality,” as law professor Akhil 122 The Way We Vote Amar put it.9 Because of locally patterned variation in...