IS MARK KLEIMAN endorsing illegal voting procedures? He has a proposal for “express lane” voting, and responds to a suggestion by Jacob T. Levy that such a system would probably be illegal by saying:

Jacob T. Levy points out that the proposal above wouldn’t survive judicial scrutiny on equal protection grounds. He argues that it would impermissibly discriminate in favor of the literate or those voting straight tickets. (My expectation was that most of the people who took the quick option would simply vote for a limited number of offices, but clearly some people can do more in three minutes than others.) . . .

Still, it’s quite likely that Levy is correct about what a court would say about the proposal. But would a court enjoin an administrative decision, made in what is clearly an emergency setting, and would it do so fast enough to matter? I’m not sure. And if it didn’t, then it’s not clear what the court could do about it afterwards, other than enjoining a repetition. The votes would count.

The same applies to the Secretary of State: he could clearly rule that the procedure was improper, but it’s not clear what he could do about it.

So it’s illegal, but we can get away with it? Can this be what Kleiman meant to say? I certainly hope not.

UPDATE: Kleiman has posted an update, stressing that no voter would be disadvantaged by his proposal. I’m not sure that’s true, but okay, and I probably should have made that clear.

ANOTHER UPDATE: Jacob T. Levy has blogged more on this too. Read the whole thing, but here’s the part that’s relevant to the above:

So if this were a Broward-only-election, I think that would be the end of the story; express-voting would be impermissible. The catch is that it’s not. If we were to resurrect the avowedly one-time-only equal protection claims made in Bush v Gore, then the variation across counties might outweigh the variation within Broward. That is, the unfairness to Browardites relative to the rest of the state could count for more than the unfairness to less-literate Browardites relative to more-literate ones. If Broward is more black or Hispanic than the rest of the state (which I assume but don’t know) then the VRA might push the same way, meaning that we wouldn’t need the Bush v Gore argument at all.

So, on reconsideration, I think it’s at least legally plausible that express-voting might be permissible. Administrative personnel and government officials have an obligation not to knowingly act in violation of the constitution, even if what they want to do is reasonable and democratic, and even if a court wouldn’t be able to stop them in time. (That, I take it, is InstaPundit’s point.) But if there’s room for legitimate legal and constitutional doubt, the officials’ own best understanding of the constitution can allow them to try things, even if a court might later disagree with them. And, having had an extra day to think about it, I now think there would be such doubt. That means that I think I side with Mark; this would be a reasonable thing for Broward officials to attempt, under the circumstances. The best interpretation of equal protection and the VRA might rule the experiment out; but this is not so certain as to require constitutional bad faith on the part of those who might attempt it.

Okay.