If the error rate for paper ballots and the error rate for optical scanners
(or electronic touch panels or mechanical levers) are sufficiently
different so as to violate equal protection -- and I don't know if they are
-- then the state may have to use the same method throughout the state.
If so, then the whole state can use paper ballots -- just as the whole
nation of Canada (Sandy notes) does. And as Glenn points out, paper
ballots provide a paper trail.
As for Frank's broader point: If the error rates from different
applications of the same method are sufficiently different so as to violate
equal protection, is there _any_ constitutional way to count votes? Am I
right that the point is intended as a reductio ad absurdum of Bush v.
Gore's equal protection analysis?
Ed Hartnett
Seton Hall
Frank Cross
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Will paper ballots really fix this problem? They are going to have an
error rate, all systems do. Any state that uses two systems will have
differential error rates for different voting systems. Indeed, even if a
state used a single uniform system,the inevitable differences in its
application will produce different error rates. Theoretically, I think
this is an irresolvable mess.
One could establish some de minimis acceptable difference in vote counting
systems, but I don't see that rule in Bush v. Gore. I'm not sure it could
be pulled from Bush v. Gore, because I don't think there was any evidence
of greater than a de minimis difference there.
Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712
