citizens to vote, in state as well as in created elections. A consistent with of decisions by demo

Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly

clear. It has been repeatedly recognized that all qualified voters have a constitutionally protected

right to vote, . . . and to have their votes version."20

Under the Equal Protection Clause of the Fourteenth Amendment, Reynolds and its

progeny require that votes that are cast must actually be counted.21 The Equal Protection Clause

also requires that all methods the "legislature has prescribed" to preserve the right to vote be

effected, not thwarted.22

Courts have held that the Due Process Clause implemented in the context of voting rights

requires "fundamental fairness" -- the idea that the state official cannot conduct an election or

apply vote-counting procedures that are so flawed as to amount to a denial of voters' rights to

have their voices heard and their votes count. As a result, under the Constitution, citizens have a

fundamental right to vote and to have their vote counted by way of election procedures that are

fundamentally fair.23 Where "organic failures in a state or local election process threaten to work

patent and fundamental unfairness, a . . . claim lies for a violation of substantive due process."24

Reynolds, 377 U.S. at 554 (emphasis added; collecting cases); id. ("it is `as equally

unquestionable that the right to have one's vote counted is as open to protection . . . as the right

to put a ballot in a box.'") (quoting United States v. Mosley, 238 U.S. 383, 386 (1915)).

"Obviously included within the right to choose, secured by the Constitution, is the right of

qualified voters within a state to cast their ballots and have them counted . . . ." United States v.

Classic, 313 U.S. 299, 315 (1941) (emphasis added).

Reynolds, 377 U.S. at 555; Mosley, 238 U.S. at 386; Classic, 313 U.S. at 315.

Bush v. Gore, 531 U.S. 98, 104 (2000).

Mosley, 238 U.S. at 386; Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).

Bonas v. Town of N. Smithfield, 265 F.3d 69, 74 (1st Cir. 2001); see also Marks v.

Stinson, 19 F.3d 873, 888 (3d Cir. 1994) (finding that substantive due process violation exists

where there is a "broad-gauged unfairness" that infects the results of an election); Duncan v.

Poythress, 657 F.2d 691, 700 (5th Cir. 1981) (holding that "the due process clause of the

fourteenth amendment prohibits action by state officials which seriously undermine the

fundamental fairness of the electoral process"); Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir.

1978) ("If the election process itself reaches the point of patent and fundamental unfairness, a

violation of the due process clause may be indicated and relief under § 1983 therefore in order");

Siegel v. LePore, 234 F.3d 1163, 1187 (11th Cir. 2000) (a federally protected right is implicated

"where the entire election process including -- as part thereof the state's administrative and

judicial corrective process -- fails on its face to afford fundamental fairness") (citations omitted).

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