Cert Petition Filed in Wexler Case

Here is the petition. Here are the questions presented:

    After the events that gave rise to Bush v. Gore, 531 U.S. 98 (2000), States, with federal encouragement, purchased new voting mechanisms to overcome problems associated with the older equipment. In Florida, as in many States, voting equipment is purchased on a county by county basis. As a result, counties within the same electoral jurisdiction can purchase different equipment that produce dramatically different records for purposes of mandatory manual recounts in especially close elections. In this case, the Eleventh Circuit decided that a State’s failure to recount all ballots in substantially the same manner is analyzed under the rational-relationship test and that the constitutional requirement that all voters be treated with equal dignity applies only to the initial round of vote counting and not to a State-mandated manual recount. The questions presented are:
    1. Whether manually recounting some ballots, as required by statute, while relying on machine verification of others in closely contested public elections is subject to rational relationship review, rather than heightened scrutiny, when challenged as a violation of the Equal Protection Clause?
    2. Whether, when a State endeavors to provide a manual recount procedure in close elections, the disparate treatment of ballots on the basis of voting system used amounts to an issue of constitutional dimension, or whether constitutional concerns arise only at the original vote-count stage?
    3. Whether use of different voting technologies, some of which lack the capacity to provide a paper trail for purposes of a state-mandated manual recount, can be justified against a constitutional challenge by “important regulatory interests,” even though the problematic equipment can be retrofitted to enable the error-checking function of a recount?
    4. Whether constitutional Equal Protection and Due Process requirements are violated, when, in a closely contested election, voters on one type of equipment will have their ballots manually scrutinized and counted when a machine fails to register their vote, while other voters using different equipment that failed to register their vote will not?

I think the chances the Supreme Court will take this case are low. I think if the court takes any Bush v. Gore-type case in the near future, it is likely to be Stewart v. Blackwell, if the en banc court reaches the same decision as the three judge Sixth Circuit panel holding that the selective use of punch card ballots in only part of a jurisdiction violates equal protection under Bush v. Gore.

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