Constitution of the United States. If Plaintiff's complaint is true, these rights are being
substantially, adversely and arbitrarily affected by the challenged statutory scheme.

An analogous situation was analyzed in the case of Griffin vs. Burns, 570 F.2d
1065 (ist Cir. 1978). In that case the Rhode Island Supreme Court granted a petition by a
candidate to invalidate 123 absentee ballots cast in a primary election. The results of this
invalidation was to take election from the certified winner and give it to the challenger. The
decertified winner brought an action under 42 U.S.C. § 1983 seeking relief from the actions of
the state supreme court. The district court in that case held that while there is no federal
constitutional right to an absent or shut-in ballots in state primary elections, “there is an
undoubted right, guaranteed by the Constitution, to vote in primary elections on an even handed
basis together with other qualified voters.” Griffin v. Burns, 431 F.Supp. 1361 at 1366. On
appeal the circuit court went on to rule, "as we agree with the District Court that the state's
retroactive invalidation of the absentee and shut-in ballots in this primary violated the voters’
rights under the fourteenth amendment, we hold that jurisdiction lies under Section 1343 (3)."
570 F.2d at 1070. Citing Ex-Parte Yarbrough, 110 U.S. 651 and United States vs. Mosley, 238
U.S, 383 the Court held that all qualified voters have a constitutionally protected right to vote
and to have their votes counted. The Court distinguished the case in hand from that in which
ballots are ruled invalid due to innocent illegalities such as "a misplaced 'X’ or the like", 570
F.2d 1075, by pointing out that the process by which the ballots had been invalidated had made
the election itself flawed process. That, together with the closeness of the election and the fact
that the right of suffrage is fundamental, was sufficient to distinguish the failure to count the
plaintiffs' votes from the type of hardship that must necessarily be borne as a consequence of the

state's ruling on a previously disputed legal issue. The Court also found no merit in the

19


classification involved. All racial classifications, for example, are subject to strict scrutiny,
constitutional only if narrowly tailored to a compelling governmental interest. Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Classifications based on sex are subject to
intermediate scrutiny, and are constitutional if substantially related to an important governmental
objective. Craig v. Boren, 429 U.S. 190 (1976). Classifications which affect fundamental tights
are also subject to strict forms of review. Shelton vs. Ti ucker, 364 U.S. 479, 488; 81 S.Ct. 247,
252 (1960); Griswold vs. Connecticut, 381 U.S. 479, 504, 85 S.Ct. 1678, 1692 (1965); Skinner
Vs. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113 (1942) .

The first question that must be asked when evaluating an equal protection claim is,
therefore, whether there is a classification. Laws neutral on their face, but which happen to have
a disparate impact on certain groups, do not necessarily violate equal protection. Washington v.
Davis, 426 U.S. 229 (1976). It does not appear that Plaintiffs allege any classification based on
Suspect criteria or any intent to discriminate against minority voters. Plaintiffs allege only that
the counties’ use of different voting systems in different parts of the state violates the equal
protection clause of the U.S. Constitution. The Defendants argue that, because no invidious
discrimination or suspect classification has been alleged here, the voting system should be
subject only to a rational basis test, and that rational justifications for the system exist.
Plaintiffs, on the other hand, argue that the correct test is strict scrutiny. Since Plaintiffs’
complaints allege an arbitrary action by Defendants it is not necessary to decide this issue at this
time.

While the State does not per se classify citizens by enacting a law that allows local
authorities to choose their voting systems, or by approving different methods of voting with

different rates of accuracy, the Supreme Court has not strictly adhered to the suspect

13


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 bailot 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, ifa ballot contains a single undervote, the PBC 2100 will not

detect any overvotes. Second, in a race where a voter may vote for more than one candidate, the


contention that the case posed nothing more than the type of common election irregularities
which are generally beyond the ken of a federal court because they do not rise to the level of a
constitutional deprivation. Indeed, the Seventh Circuit has itself refused to act in cases involving
such things as malfunctioning of voting machines in an election for county office. Hennings vs.
Grafton, 523 F.2d 861 (7th Cir. 1975). However, the case at bar is not one of an accidental
malfunction or unforeseen error in counting or failing to count a particular group of ballots.
What is challenged by the Plaintiffs' complaint is not an unforeseen human or mechanical
irregularity which results in a diminution of someone's voting rights, but rather a statutory
scheme which, depending upon the choices made by local election jurisdiction officials, will
necessarily result in the dilution of an entire group of citizens’ right to vote. Unless all election
officials make the same choice of vote counting processes, the votes cast in some districts will
have a significantly greater chance of being counted than the votes cast in neighboring election
districts. If so, then, like the Griffin Court, we are confronted with an officially sponsored vote
counting procedure which, in its basic aspect is flawed because it irrationally allows local
election officials, by the choice of vote counting procedures, to assign greater importance and
weight to the votes cast by one portion of the electorate. Such a situation does rise to the level of
a constitutional violation. Furthermore, what Plaintiffs allege is not a question of mistakes or
irregularities which can be addressed by an adequate state corrective procedure, but rather it is
the state procedure itself which is alleged to cause a fundamental unfaimess. The crux of the
matter it appears to us is not that the Plaintiffs seek to mandate a certain level of accuracy, but
rather that a law that allows significantly inaccurate systems of vote counting to be imposed
upon some portions of the electorate and not others without any rational basis runs afoul of the

due process clause of the U.S. Constitution. Therefore, Defendants' motion to dismiss Plaintiff's

20


CONCLUSION

For the reasons set forth above, Defendants’ motions to dismiss are granted in part and
denied in part as follows: Defendants’ motions to dismiss Plaintiffs’ claims for violation of equal
protection are DENIED; Defendants’ motions to dismiss Plaintiffs’ claims for violation of due
process are DENIED; Defendants’ motions to dismiss Plaintiffs’ claims for violation of the
Voting Rights Act of 1965 are DENIED; Defendants’ motions to dismiss Plaintiffs’ claims for
violation of the privileges and immunities clause of the Fourteenth Amendment are GRANTED;
County Clerk Defendants’ motions to be dismissed on the basis of Eleventh Amendment
immunity are DENIED. ( 01C208-#43-1,44-1,46-1,58-1,64-2,66-1; 01C0796-#0-1,12-1,0-1,15-

1,23-1,26-1,29-1).

SO ORDERED: ENTERED

Miewtht DE

HON. RONALD A. GUZMA)
United States Judge

W239 OL~

22


Due Process and Privileges and Immunities
Defendants point out that the United States Supreme Court has not recognized a right to

perfect, error-free voting system, to a particular voting system, or even to certain level of
convenience or effectiveness in voting. See, e.g., Burdick vs. Takushi, 504 U.S. 428, (1992);
MacDonald vs. Chicago Board Election Commissioners, 394 U.S. 802 (1969). Therefore, they
would argue, the complaint fails to state a constitutional due process violation. However, in Bush
the Court held that while the individual citizen has no federal constitutional right to vote for
electors for the president of the United States unless and until the state Legislature chooses a
statewide election as the means to implement its power to appoint members of the electoral
college, once the state legislature vests the right to vote for president in its people, the right to
vote, legislatively prescribed as it is, is nevertheless a fundamental right. The question before us
is whether or not such a fundamental right can be treated arbitrarily with the resulting vote
dilution impacting disproportionately on two groups defined by legally suspect criteria. Plaintiffs
argue that the long, proud, and increasingly powerful tradition of electoral democracy "gives rise
to a right to vote under substantive due process." The right to vote in general is specifically
protected by more than one constitutional amendment. ! Further, the Supreme Court has on more
than one occasion recognized that the right to vote is one of those rights that is preservative of
other basic civil and political rights. Reynolds vs. Sims, 377 U.S. 533 at 561-562.

Undoubtedly, the right of suffrage is a fundamental

matter in a free and democratic society. Especially

since the right to exercise the franchise in a free and

unimpaired manner is preservative of other basic
civil and political rights, any alleged infringement

'The 15th Amendment (prohibitions on the use of race, color, or previous condition of
servitude); 26th Amendment (age); 19th Amendment (gender); 24th Amendment (toll taxes).

17


certainty that their intended votes were not counted. If standing in cases like this one required
more, then no one would have standing to challenge a system with, for example, a 20% or 30%
or 60% residual vote rate, or a policy under which every tenth ballot was systematically
discarded instead of counted. Such results would be contrary to both voting rights and standing
law. Further, the injury here alleged, is not the State’s failure to count any one person’s vote, but
the higher probability of that vote not being counted as a result of the voting systems used, i.e.,
vote dilution. That injury is both provable and traceable to Defendants’ actions given the facts
alleged. Vote dilution as “directly related to voting, the most basic of political rights, is
sufficiently concrete and specific.” FEC v. Akins, 524 U.S. 11, 25 (1998). Therefore, the court

concludes that Plaintiffs have standing to raise the claims asserted.

B. Ripeness

Defendants argue that the PBC 2100 (the current error detection technology used for
punch card ballots) must be used in an election and shown to be inadequate before the court can
grant an injunction prohibiting the technology. According to the Defendants, until the PBC 2100
is used in an election, it would be sheer speculation to claim that the error notification
capabilities are inadequate. Accordingly, they argue the PBC 2100 will not be ripe for review
until the error notification function of the PBC 2100 is actually used in a citywide or statewide
election and produces results that could form the basis of a claim.

Plaintiffs argue that their claims are not rendered “moot” by the Defendants’ planned
voluntary employment of limited error notification, because nothing requires the Defendants to
provide the error notification. The Plaintiffs contend that the original practices could recur and

Defendants’ voluntary conduct will not address all of the “remaining effects” of the deficient


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. Jd. at 5. The court further
rejected the Plaintiffs’ claim that they have a substantive due process right to voter error
detection. Jd. 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


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


of the right of citizens to vote must be carefully and
meticulously scrutinized. Almost a century ago, in
Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30
L.Ed, 220, the Court referred to ‘the political
franchise of voting’ as ‘a fundamental political
right, because preservative of all rights’. 118 U.S.,
at 370, 6 S.Ct., at 1071.

In a similar vein the Reynolds Court went on to say:
And, if a State should provide that the votes of
citizens in one part of the State should be given two
times, or five times, or 10 times the weight of votes
of citizens in another part of the State, it could
hardly be contended that the right to vote of those
residing in the disfavored areas had not been
effectively diluted. It would appear extraordinary to
suggest that a State could be constitutionally
permitted to enact a law providing that certain of
the State's voters could vote two, five, or ten times
for their legislative representatives, while voters
living elsewhere could vote only once.”

Plaintiffs in the case at bar appear to be alleging a similar dilution of the voting rights of
certain citizens. There is, of course, a difference in that the complained of legislative action is
not a law aimed at any one group or, intended to affect directly the weight given to a single vote
or a class of voters. Rather before us is a statute that is essentially administrative and regulatory
in nature and which seeks to establish allowable voting procedures from which local officials
may choose in order to provide a mechanism for citizens to vote in their respective voting
districts. Nevertheless, it would appear that the right to vote, the right to have one’s vote

counted, and the right to have ones vote given equal weight are basic and fundamental

constitutional rights incorporated in the due process clause of the Fourteenth Amendment to the

18


Defendants argue that Plaintiffs have asserted a generalized grievance and that the statistical
likelihood of future injury is insufficient to bring standing. Plaintiffs allege that African
American and Latino voters suffered injury when they use the challenged voting systems
because they voted in the 2000 election in precincts recording a substantial and disproportionate
number of undervotes. As the district court held in Andrews v. Cox, No. 1:01-CV-319-ODE
(N.D. Ga. Aug. 20, 2001), “plaintiffs sufficiently allege a personal injury...by the
disproportionate risk of having their votes not counted.” Slip op. at 8. The ballot machinery used
in the jurisdictions in which Plaintiffs vote increases the likelihood that their votes will not be
counted. That “probabilistic injury is enough “‘injury in fact’... to confer standing in the
undemanding Article III sense.” North Shore Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir.
1991). See also, Tucker v. United States Dept. of Commerce, 958 F.2d 1411, 1415 (7th Cir.
1992) (holding that Illinois voters were injured by failure to adjust census, because adjustment
might increase the state’s seats in the House of Representatives, and “for all we know ... might”
increase the State’s federal funds); Bryant v. Yellen, 447 U.S. 352, 366-67 (1980) (holding that
residents who desired to purchase farmlands had standing to challenge a court decision holding
inapplicable a Jand reclamation law where it was likely that lands would become available at less
than market prices if the law were applicable).

In the 2000 Presidential race, the probability of an uncounted vote was 22 times greater
in Chicago, which used one of the challenged voting systems, than in McHenry County, which
did not. The “probabilistic” injury is particularly high for those named Plaintiffs whose election
precincts had particularly high residual vote rates, including Clarence Dossie (precinct 2 of Cairo
had a rate of 11.32%) and Fern Watts (precinet 5 of East St. Louis had a rate of 13.52%).

Because the voting process is anonymous, it is impossible for any one voter to know with more


Minote Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Ronald A. Sitting Judge if Other
or Magistrate Judge onald A. Guzman than Assigned Judge

CASE NUMBER | _ 01 C 208- RELATED TO DATE 3/29/2002
010796

CASE BLACK, et al and del Valle, et al vs. WILLIAM M. McGUFFAGE, et al

TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

(i) Q Filed motion of [ use listing in “Motion” box above.]

(2) Qo Brief in support of motiondue

(3) im Answer brief to motion due . Reply to answer briefdue__.

(4) im Ruling/Hearing on __setfor__at

(5) i) Status hearing[held/continued to] [set for/re-set for]on__setfor___—_at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_——sat_—S
(7) Oo Trial[set for/re-set for] on__at

(8) im [Bench/Jury trial] [Hearing] held/continued to__at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) ClGeneral Rule21 CIFRCP41(a)(1) [FRCP41(a)(2).

ao) [Other docket entry] Defendants’ motions to dismiss are granted in part and denied in part. Enter
Memorandum Opinion and Order. (010208 - #43-1,44-1,46-1,58-1,64-2,66-1; 010796 -#0-1,12-1,

0-1,15-1,23-1,26-1,29-1).

(1) @ {For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required. number of notices

Notices mailed by judge's staff.
MAR 2.9 2007

Notified counsel by telephone, date docketed

KE | Docketing to mail notices. we? b
Mail AO 450 form. “docketing deputy initials

Copy to judge/magistrate judge.

date mailed notice
courtroom

deputy’s
initials

Date/time received in _
central Clerk’s Office mailing deputy initials



State Bd. Of Elections, 393 U.S. 544 (1969). Section 2 prohibits the use of any electoral
practice or procedure that “results in” a denial or abridgement of the right of any citizen to vote
on account of race or color or membership in a “language minority” group. The scope of the
right to vote protected by Section 2 is expansive. It expressly includes protection for “all action
necessary to make a vote effective,” including “casting a ballot and having such ballot counted
properly.” 42 U.S.C. § 1973/(c)(1).
Section 2(b) of the Act defines when a violation of Section 2 occurs. It provides that an

electoral standard, practice or procedure results in a violation of the right to vote whenever:

[bJased on the totality of circumstances, it is shown that the

political processes leading the nomination or elections in the State

or political subdivision are not equally open to participation by

members of a class of citizens protected by subsection (a) of this

section in that its members have less opportunity than other

members of the electorate to participate in the political process and

to elect representatives of their choice.
42 U.S.C. § 1973(b).

Courts have applied Section 2 to a broad array of election practices, including practices

related to the tabulating of votes. See, e.g., Roberts v. Wamser, 679 F. Supp. 1513, 1532 (E.D.
Mo. 1987) (failure to manually re-count punch card ballots not counted by tabulating
equipment), rev'd on other grounds, 883 F.2d 617 (8th Cir. 1989); Goodloe v. Madison County
Bd. Of Elections Comm’rs, 610 F.Supp. 240, 242 (S.D. Miss. 1985) (failure to count absentee
ballots); United Sates v. Post, 297 F.Supp. 46, 51 (W.D. La. 1969). There are two statutory
elements to a claim under Section 2: (1) the use of an electoral “standard, practice or procedure,”
and (2) a resulting diminution of the opportunity to African American and Latino voters “to

participate in the political process and to elect representatives of their choice.” 42 U.S.C. §

1973(a)-(b). Plaintiff's complaint satisfies the necessary elements under Section 2.

11


voting practices and procedures identified by the Plaintiffs. These practices and procedures
include first, that the error notification provided by the PBC 2100 is inadequate, no matter how it
is employed in practice, further, that this error notification will not address the intrinsic error-
causing deficiencies of punch card ballots, which will still be used and finally, that the “limited”
error notification capabilities will not be used statewide.

As the Supreme Court has stated, the ripeness doctrine “is drawn from both Article II
limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.”
Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 (1993). Article HI confines federal courts to
adjudicating “actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494
U.S. 472, 477 (1990). A case is not ripe if it depends “upon contingent future events that may
not occur as anticipated” or involves “abstracting disagreements over administrative policies.”
Texas v. United States, 523 U.S. 296, 300 (1998). To determine whether a claim is fit for
judicial decision, a court evaluates “whether the issue is ‘(a) essentially legal, and (b) sufficiently
final.”” Consol. Rail Corp. v. United States, 896 F. 2d 574, 577 (D.C. Cir. 1990). Because the
PBC 2100 will more than likely be used by Chicago and Cook County in upcoming elections in
which Plaintiffs will case votes we find that this case is sufficiently ripe under Article IIL.
Plaintiffs do not have to wait for yet another opportunity for their votes not to be counted before

bringing suit.

Voting Rights Act Section 2
The Voting Rights Act of 1965 is a broad remedial statute, which the Supreme Court has
emphasized “should be interpreted in a manner that provides ‘the broadest possible scope’ in

combating racial discrimination.” Chisom v. Romer, 501 US. 380, 403 (1991) (quoting Allen v.

10


injunction, and following a trial on the merits a permanent injunction prohibiting the use of

punch card voting systems and voting systems that lack effective error notification.

DISCUSSION
Standard for Dismissal

A court may dismiss a complaint only if it is clear that no relief could be granted
under any set of facts that could be proven consistent with the allegations. See Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984). The court will accept as true all well pleaded factual
allegations and view them in a light most favorable to the non-moving party. Jd.

Defendants move to dismiss Plaintiff's Section 2 and constitutional claims on the
grounds that 1) there is no case or controversy under Article IH, 2) Plaintiffs have failed to state
aclaim under Section 2 of the Voting Rights Act, 3) Plaintiffs have failed to state an equal
protection or due process claim under the Fourteenth Amendment, and 4) the Eleventh
Amendment immunizes the County Clerks from Plaintiffs’ constitutional claims. Each of these

arguments for dismissal will be addressed separately.

Article TH
A. Standing
Defendants first argue that Plaintiffs lack standing under Article III of the U.S.
Constitution because they fail to allege injury to their own individual rights. To satisfy the
minimum standing requirements, a plaintiff must demonstrate: 1) an injury in fact; 2) a causal
link between the injury and the conduct complained of; and 3) a likelihood that a favorable

decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).


substantive due process claim is denied. Plaintiffs have alleged a violation of their substantive
due process rights.

As for Plaintiffs’ privileges and immunities claim, the single paragraph devoted
to it in their consolidated reply brief is an indication of its strength. Although the privileges and
immunities clause of the Fourteenth Amendment has recently been revived from comatose since
its knock-out in the Slaughter-House Cases, see Saenz v. Roe, 526 U.S. 489 (1999), no precedent
whatsoever exists for extending that clause to cover situations like the one presented here. That

claim, to the extent it even existed in Plaintiffs’ complaint, is dismissed.

Eleventh Amendment

The County Clerks of Alexander, Sangamon, Will, and Whiteside Counties argue that the
Eleventh Amendment immunizes them from Plaintiffs’ constitutional claims. However, Illinois
law seems clear that the County Clerks are not state officials and therefore are not protected by
the Eleventh Amendment’s immunity when engaged in the supervision of elections. See
DeGenova Vs. Sheriff of Du Page County, 209 F.3d 973, 976 (7" Cir. 2000). As pointed out in
Plaintiffs’ brief County clerks oversee elections, bear virtually all expenses and costs of election
proceedings, and furnish voting booths, supplies and poll books for such elections. These are the
types of factors which the court found in the DeGenova case warranted a determination that the
Sheriff of the Du Page County was acting as a County officer when managing the county jail.

We find that the County Clerk’s are not immunized by the Eleventh Amendment.

21


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 seg., 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 INinois, 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).


classification doctrine when addressing cases of voting tights with respect to States. An example
of this is the case that resolved the controversy that has sparked the current debate, Bush v. Gore,
531 U.S. 98 (2000). In Bush, the Court was faced with a statewide election recount, ordered by
the Florida Supreme Court, which adhered to no uniform standard of counting. The recount
process, it said, was inconsistent with the minimum procedures necessary to protect the
fundamental right of each voter in the special instance of a statewide recount. Id. at 109.
Although the Court limited its decision to the then present circumstances, id., the rationale
behind the decision provides much guidance to the situation in this case, which presents, as far
as this Court can tell, a matter of first impression in this Circuit and, indeed, this country. That
question is whether a state may allow the use of different types of voting equipment with
substantially different levels of accuracy, or if such a system violates equal protection.

The right to vote, though one cherished throughout the history of our republic, is by no
means absolute. Indeed, the only offices in the United States that are constitutionally required to
be elected ones are those of Congress, and even then, citizens are eligible to vote for members of
Congress only if they are also eligible to vote for members of their state legislature, U.S. Const.
art. I, § 2; amend. XVI, subject, of course, to the 15th, 19th, and 26th amendments. The right to
vote, therefore, is vested primarily in the States to endow.

However, once the State has endowed voting rights to its citizens, “the right to vote as the
legislature has prescribed is fundamental; and one source of its fundamental nature lies in the
equal weight accorded to each vote and the equal dignity owed to each voter.” Bush, 541 U.S. at
104, “Having once granted the right to vote on equal terms, the State may not, by later arbitrary
and disparate treatment, value one person’s vote over that of another.” Jd. at 104-105. That is

precisely what Plaintiffs allege the Defendants have done.

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evidence of a disproportionate impact on any group delineated by traditional suspect criteria, is
impacting African American and Hispanic groups disproportionately.

That people in different counties have significantly different probabilities of having their
votes counted, solely because of the nature of the system used in their jurisdiction is the heart of
the problem. Whether the counter is a human being looking for hanging chads in a recount, or a
machine trying to read ballots in a first count, the lack of a uniform standard of voting results in
voters being treated arbitrarily in the likelihood of their votes being counted. The State, through
the selection and allowance of voting systems with greatly varying accuracy rates “value[s] one
person’s vote over that of another,” Bush, 531 U.S. at 104-105, even if it does not know the faces
of those people whose votes get valued less. This system does not afford the “equal dignity
owed to each voter.” Jd. at 104. When the allegedly arbitrary system also results in a greater
negative impact on groups defined by traditionally suspect criteria, there is cause for serious
concern.

The Court is certainly mindful of the limited holding of Bush. However, we believe that
situation presented by this case is sufficiently related to the situation presented in Bush that the
holding should be the same. This holding is also consistent with the overarching theme of voting
tights cases decided by the Supreme Court--that theme being, of course, “one man, one vote.”
Any voting system that arbitrarily and unnecessarily values some votes over others cannot be
constitutional. Even without a suspect classification or invidious discrimination, “(t]he right of
suffrage can be denied by debasement or dilution of the weight of a citizen’s vote just as
effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds, 377 U.S. at
555. Therefore, Plaintiffs have sufficiently stated a claim against the Defendants for violation of

equal protection.

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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 Aielio).

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


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)
Black, et al., and )
)
Miguel det Valle, et al., )
)
Plaintiffs, )

) No. 01.C 208

Vs. ) No. 01 C796
)

William M. McGuffage, et al., ) Judge Ronald A. Guzman

)
)
Defendants. )
)

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.

BACKGROUND FACTS
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


Plaintiffs have identified an electoral practice (deficient ballot systems), and have alleged
that because of that practice they have less opportunity than other members of the electorate to
participate in the political process and elect representatives of their choice. Discriminatory
results in an election practice have been found sufficient to state a Section 2 violation. Bruton v.
City of Belle Glade, 178 F.3d 1175, 1196 (11th Cir. 1999), and the “totality of circumstances”
requiring analysis under Section 2 cannot be fully ascertained in this case except through
discovery and possibly trial. Under the facts alleged in the first amended complaint, the
disparate rates of undervotes indicates that Plaintiffs, as voters residing in predominantly Latino
and African American precincts where punch card machines are utilized, bear a greater risk that
their votes will not be counted than do other voters. As such, Plaintiffs’ participation in the
political process could be significantly diminished. Accepting Plaintiffs’ facts as true we find
Plaintiffs’ Section 2 allegations sufficient to state a claim.

Defendant County Clerks Gould, Aiello, and Patton also argue that claims against them
should be dismissed because the complaint does not allege any facts specific to them. However,
the complaint sufficiently alleges that all named officials were involved in the selection of voting

equipment and, as such, the Voting Rights Act claims against them can stand.

Equal Protection Clause
We turn to the issue of equal protection. The Fourteenth Amendment states that “[nJo
State shall deny to any person within its jurisdiction the equal protection of the laws.” Today,
the equal protection clause has been interpreted to forbid certain forms of classification that
cannot be justified by compelling or important governmental objectives. To this end, the

Supreme Court has constructed a system of varying levels of scrutiny depending on the

12


Other voting rights cases related to equal protection have involved actual classifications
by the State, conscious decisions to treat particular groups of people differently than others. For
instance, in Reynolds v. Sims, 377 U.S. 533 (1964), the Alabama state legislature passed a
legislative apportionment scheme that was not based on population. As a result, voters in certain
areas had less representation in their legislature than voters in other areas, solely because of
where they lived. The Court found that “{d]iluting the weight of votes because of place of
residence impairs basic constitutional rights under the Fourteenth Amendment.” Jd. at 566. In
doing so the Court engaged in a detailed analysis of various proposals by the state and found
them lacking. Clearly the Court was not practicing a deferential analysis. Likewise, in Moore
v. Ogilvie, 394 U.S. 814 (1969), the Court ruled unconstitutional an apportionment plan that
gave greater electoral strength to voters in rural counties than urban counties.

This case presents a situation much more analogous to that in Bush than that of other
voting rights cases. Here, as in Bush, the State is not classifying citizens insofar as it is choosing
one system of voting for some and a different system of voting for others, nor is it choosing to
dilute the votes of some and not dilute the votes of others, as in Reynolds and Moore. Rather, it
leaves the choice of voting system up to local authorities. But that choice necessarily means that
some authorities will choose a system with less accuracy than others. As a result, voters in some
counties are statistically less likely to have their votes counted than voters in other counties in
the same state in the same election for the same office. Similarly situated persons are treated
differently in an arbitrary manner. As in Bush the lack of a rational basis for implementing a
different system of vote counting results in vote dilution. In addition, the Plaintiffs in this case

allege that the resulting vote dilution, which was found to be unacceptable in Busch without any

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