Comments

Forthcoming, Fordham Law Review (vol. 73, March 2005).

Abstract

The 2000 election ignited a fierce controversy over the machinery used for voting. Civil rights advocates have called for the replacement of outdated paper-based voting equipment, like the infamous “hanging chad” punch card. Yet the introduction of paperless technology, especially electronic “touchscreen” machines, has induced widespread concern that software might be rigged to alter election results. This article examines the debate over electronic voting, which raises fundamental questions about the democratic values that should guide the administration of elections. It frames the debate by defining four equality norms embodied in federal voting rights laws and the Constitution. Electronic voting has the potential to advance racial equality, disability access, and multilingual access. At the same time, there are legitimate concerns surrounding the implementation of present-generation technology. The proposed “voter verified paper audit trail” is unlikely to resolve these concerns, though other measures may be taken to promote security and transparency. The article concludes that legislatures and courts have important roles to play in the transformation of voting technology, but that the most important decisions lie in the hands of state and local election officials. It suggests a legal structure that will protect basic voting rights while allowing for innovation and experimentation. Most important, the article urges that election reform no longer be viewed as a once-in-a-generation occurrence, but as an ongoing process that should proceed for as long as voting technology continues to improve.

Disciplines

Civil Rights and Discrimination | Constitutional Law | Public Law and Legal Theory

Date of this Version

December 2004

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