Document Type


Publication Date

Summer 2012

Publication Title

Case Western Reserve Law Review


hava, voting, technology, rights, machines, scientific studies, direct recording electronic, dre


My analysis seeks to underscore the gravity of technologically threatened constitutional voting rights and values, implicating both individual rights to vote and the structural promise of popular sovereignty. Resolution of the dispute over the meaning of Fourteenth Amendment17 principles properly derived from Bush v. Gore18 will be pivotal to assuring meaningful voting rights in the information society. If the Court should hold the Fourteenth Amendment to embrace a deferential standard of review or arduous intent requirements, allowing state political branches to persist in choosing voting technologies based on scientifically unfounded premises that do not achieve classic components of voting rights, the American Republic’s future is seriously endangered.19

The argument proceeds in two parts. Part I traces illustrative empirical findings of the two comprehensive, definitive voting systems studies, offers evidence derived from actual election calamities that substantiates the experts’ findings, and translates these findings into concepts meaningful for voting rights and election law. Part II considers the judiciary’s failures thus far to understand the legal import of the scientific studies of voting systems when adjudicating the structural legal sufficiency of deployed voting systems20 and identifies questions on which scholarship is critically needed. Throughout, owing to space constraints, the argument is illustrative rather than comprehensive.





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