The opinion of the court was delivered by: Guzman, District Judge.
MEMORANDUM OPINION AND ORDER
Before the Court are numerous motions of Defendants to dismiss Plaintiffs' amended complaint for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the motions are granted as to Plaintiffs' privileges and immunities clause claim and denied in all other respects.
The presidential election of 2000 highlighted to the public, in a most dramatic way, the serious flaws in voting systems used throughout the country. These flaws, unfortunately, did not fully come to light until a presidential election took place in which the margin of victory in one State, Florida, was less than the margin of error of the voting system used. Of these systems, none in particular received more attention than the punch card ballot system. Arguably error associated with the punch card system, both human and mechanical, directly influenced the outcome of that election. Therefore, the aftermath of November, 2000, has caused many to question the use of the punch card system, or others that may be prone to such error.
Neither the federal courts, nor likely anyone, can guarantee to every eligible voter in this country a perfect election with 100% accuracy. The courts can, however, by enforcing the Fourteenth Amendment to the U.S. Constitution and the Voting Rights Act of 1965, guarantee the equal treatment of voters who attempt to have their votes counted, their voices heard.
This case is a civil rights class action challenging the system of voting in Illinois. The Plaintiffs are Latino and African American voters in counties throughout Illinois. Defendants include Members of the Illinois State Board of Elections, Chicago Board of Election Commissioners and various county and county clerks throughout Illinois (among them Cook County and County Clerk David Orr; County of Alexander and Alexander County Clerk, Gloria Patton; Will County and Will County Clerk, Jan Gould; Sangamon County and Sangamon County Clerk, Joe Aiello).
Plaintiffs challenge the state's certification and approval, and the local Defendants' selection and use of: (1) punch card voting systems, (2) voting systems that lack effective error notification, and (3) voting systems with inadequate education of voters, inadequate training of and assistance from election judges, and inadequate ballot design. Plaintiffs allege that all of these systems violate Section 2 of the Voting Rights Act of 1965, and that the State's approval of these different systems violates the Fourteenth Amendment to the U.S. Constitution. Plaintiffs seek declaratory and injunctive relief, including but not limited to an order requiring the state to certify and approve, and the local Defendants to select and use, voting systems that do not have a disparate impact against African American and Latino voters. Plaintiffs allege that African American and Latino voters are disproportionately forced to use--and are disproportionately injured when they use--the challenged voting systems.
Under Illinois' Election Code 10, ILCS 5/1-1 et seq., counties may use several voting systems certified by the Illinois State Board of Elections, including a punch card system as well an optical scan system. Some of these systems have error notification procedures, which notify a voter when the ballot contains a disqualifying error. The Election Code further authorizes two different ways of counting the ballots: in-precinct (each precinct has tabulators that provide election judges with the official vote for that precinct) and central count (ballots are counted at the end of the night in a central location). In a central count jurisdiction, it is physically impossible to use error notification technology.
Currently, Illinois jurisdictions use one of four voting systems: optical scan ballots with in-precinct counting (including error notification), optical scan ballots with central counting (without error notification), punch card ballots with in-precinct counting (including error notification) and punch card ballots with central count (without error notification).
Selection of the voting system and method of counting is left to each of the 110 local election authorities in Illinois, subject to certification and approval by the State Defendants. In 2000, ten election jurisdictions used optical scan systems with in-precinct counting; three used optical scan systems with central counting (including East St. Louis); two used punch card systems with in-precinct counting (including the City of Chicago and Cook County); and 95 used punch card systems with central counting (including Alexander County, Sangamon County, Whiteside County and Will County).
A residual vote occurs when a voting system determines that a ballot does not contain a permissible vote in a particular race, notwithstanding the voter's actual intent. Punch card voting systems are especially prone to ballot error. Such failures are caused by machine defects and the predictable and normal interaction between voters and the machines. These included the buildup of chad in the machines, improper placement of the ballot into the recording device, and improper use of the stylus. These problems can result in ballots that cannot be read by the vote counting machines. Other problems include misaligned recording devices, recording devices not easily read at the angle by the voter, and confusing ballot designs, e.g., the "butterfly ballot." Because of these problems, voters sometimes cannot properly match the names of candidates to the correct chad. Also, there may be inadequate education of voters in how to use the equipment, and/or inadequate assistance from election judges.
Optical scan voting systems are also prone to ballot error because of the predictable and normal interface of voters with the machines. Voters may make a mark that is not sufficiently large, use an improper writing implement, or mark the wrong area. Voters may properly mark the oval for their preferred candidate and also write in the name of the preferred candidate, which would cause an overvote. Finally, the vote counting machine may identify stray marks as votes, which would also cause an overvote.
Presently, the two Illinois jurisdictions that use punch card voting systems with in-precinct counting, Chicago and Cook County, use the "PBC 2100" to count votes. The PBC 2100 has been used already in the municipal elections of Cook County in February and April, 2001. The system is not capable of providing effective error notification in certain circumstances, however. First, if a ballot contains a single undervote, the PBC 2100 will not detect any over-votes. Second, in a race where a voter may vote for more than one candidate, the PBC 2100 will not detect any undervotes. Third, the PBC 2100 can detect only two residual votes at a time. Thus, if a punch card contains more than two residual votes, voters must return to the recording device two or more times. Fourth, many voting precincts straddle a jurisdictional boundary. When some voters in a precinct are entitled to vote in a contested election but other voters are not, the PBC 2100 will improperly determine that every ballot cast by the latter voters contains an undervote. Defendants remedy this problem by deactivating the undervote notification for these races. Fifth, where there is one candidate listed on the ballot and one certified write-in candidate, the PBC 2100 will count the undervote alert upon a vote for the latter but not a vote for the former. Because of concern that these differences might undermine voter secrecy, Defendants deactivate the undervote notification for these races.
The average residual vote rate across Illinois, for ballots cast for president in the November, 2000 presidential election, was approximately 3.85%. This rate varied substantially among Illinois jurisdictions. Jurisdictions using optical scan ballots with error notification the average residual vote rate was less than 1%. The rates ranged from 0.32% in McHenry County to 1.07% in Franklin County. In jurisdictions using punch card ballots without error notification the average residual vote rate was more than 4%. For example, in Chicago, the rate was 7.06% citywide, 12.59% in the 12th ward, 12.4% in the 37th ward, and 36.73% in the 48th precinct of the 29th ward. Similarly, the rate was 5.23% in suburban Cook County, 8.8% in the Cicero Township of Cook County and 7.48% in Alexander County. The rate was 3.17% in Whiteside County, 2.48% in Will County, and 2.15% in Sangamon County. In the three election jurisdictions which use optical scan ballots without error notification the average residual vote rate was more than 4%. For example, the rate was 10.88% in all of East St. Louis, but 22.30% in the 20th precinct of East St. Louis.
A recent state court decision interpreted the Illinois Election Code with regard to error notification technology in punch-card jurisdictions. See Tully v. Orr, No: 01 CH 00959 (August 23, 2001). The Tully court ruled that Section 24A of the Illinois Election Code, which applies to punch card jurisdictions, neither requires, nor prohibits the use of error detection technology. Therefore, the use of error detection technology is discretionary. Id. at 5. The court further rejected the Plaintiffs' claim that they have a substantive due process right to voter error detection. Id. at 19.
The majority of Illinois counties use the punch card voting system. The Plaintiffs allege that those jurisdictions that employ either punch-card voting systems or provide optical scan without error notification experience a higher percentage of residual votes than those jurisdictions that use optical scanning equipment with error notification (a residual vote is a ballot that does not contain a permissible vote). Therefore, Plaintiffs conclude that individuals living in punch card jurisdictions have a greater statistical probability of not having their votes counted. Finally, Plaintiffs argue that the counties with the punch-card system have larger populations of minorities than do counties using other voting systems, and thus use of those less accurate machines has a disparate impact on minority voters.
On April 13, 2001, Plaintiffs filed an amended complaint alleging the above facts. Plaintiffs claim these voting systems violate Section 1973 of the Voting Rights Act of 1965 (commonly referred to as Section 2 of the Voting Rights Act), as well as the equal protection and due process clauses of the fourteenth amendment. Plaintiffs seek an entry of a preliminary injunction, and following a trial on the merits a permanent ...