Abstract

High-profile controversies surrounding the 2000 presidential election, the 2003 California gubernatorial recall election, and to a lesser extent, the 2004 presidential election exposed an ugly truth of American politics: a non-negligible percentage of votes are left uncounted in every election due to voting machine error, disproportionately affecting poor and minority voters. Yet despite nearly a half-century of judicial intervention within the "political thicket" to enforce the one-person, one-vote principle, courts have thus far cast a blind eye to the problem of differential error rates among voting machines.

This Note discusses the political and constitutional ramifications of permitting States to employ different voting machines within intra-state electoral districts. Part I describes the five types of voting machines currently available to States, and describes a number of elections in which the result may have turned on the use of different machines among intra-state districts. Part II surveys the remedial steps that Congress and various States have undertaken since Bush v. Gore to remedy the problem of differential voting machine error rates. Part Ill traces the doctrinal evolution of the Supreme Court's voting rights jurisprudence and examines the lower courts' struggle to cope with "third level" voting infringements. Part IV considers and ultimately rejects the political arguments in favor of allowing States to address the problem extrajudicially. Part V examines the political malfunctions that flow from allowing local municipalities to choose which election machinery to use. Finally, Part VI explains why the Equal Protection Clause should be interpreted to require each State to use uniform voting technology within its borders.

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