Published in The Columbus Dispatch, on Friday, October 1, 2004


By Mark Niquette

AKRON -- The federal trial on the constitutionality of punch-card voting systems in Ohio resumed yesterday and is expected to conclude today with final testimony from experts on both sides.

Judge David D. Dowd Jr. has given each side until Oct. 18 to file final arguments about whether punch cards violate voters' rights. He hasn't said when he will rule, and an appeal is expected regardless of the outcome.

Dowd halted the trial July 28 to give the American Civil Liberties Union, which is suing Ohio Secretary of State J. Kenneth Blackwell and four counties to ban the use of punch cards, more time to review an expert's report.

That expert, John R. Lott Jr., was back on the witness stand yesterday to argue that punch cards have the same or a lower error rate as other types of voting equipment when past races in Ohio besides for president are considered.

Attorneys for the ACLU, who focused their case mostly on results from the 2000 presidential election, questioned Lott's findings during cross-examination yesterday and plan to call their expert today to challenge his conclusions.

The ACLU wants punch-card systems declared unconstitutional and illegal on grounds voters who must use them -- especially blacks -- are more likely to have their votes not counted than "favored'' voters using more reliable systems.

State lawyers argue that while punch-card systems should be replaced, they are legal and do not deny anyone the right to vote.

The ACLU has said it's too late to stop the use of punch cards in the Nov. 2 election, and Blackwell's office has committed to replacing punch cards with new equipment by the November 2005 election.

But the case has gone to trial in part because the ACLU doesn't trust the state to keep that schedule, and the state doesn't want to pay ACLU attorney fees.

Punch-card critics also want a ruling because this is the first such lawsuit to go to trial, ACLU lawyer Paul Moke said.

"We want to set a precedent for the rest of the country,'' said Moke, who is a professor of social and political science at Wilmington College.

The debate also is important because this fall, voters in 69 of Ohio's 88 counties -- about 73 percent of all voters -- will use punch-card systems widely blamed for problems during the 2000 election in Florida.

During testimony before the ACLU rested its case in July, experts said punch-card machines are error-prone because of "hanging chads'' and other problems that cause too many or too few votes to be counted in a race.

The ACLU analysis shows an Ohioan voting for president in 2000 with a punch card was 40 percent more likely not to have that vote counted than a citizen using an optical-scan machine -- and five times more likely than a voter using an electronic device.

That, combined with high poverty and lower educational levels, causes voters using punch cards in precincts with mostly black residents to have much higher error rates than voters in mostly white precincts, the experts said.

The state challenges those conclusions and the way they were reached.

Dana Walch, Blackwell's director of legislative affairs, testified yesterday that Ohio still is developing standards for paper-receipt systems to be used with electronic voting machines to address security concerns.

The state also is waiting for about $23 million in federal funding to add to the $131 million already received to pay for the equipment, but Walch expects the new machines in place by November 2005.

Testimony was read into the court record yesterday from Herb Asher, a professor emeritus at Ohio State University who said Ohio is better prepared than Florida was in 2000 to withstand such scrutiny.

"By and large, Ohio has a good system,'' Asher said. "And when we get rid of punch-card voting, we'll have a better system.''


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