The allegedly confusing ballot

[Michael Curtis]

It is quite true that there are difficulties with the idea of a second vote.  We
may face, however, a choice between evils.  If the NPR report of 19,000
discounted ballots in the county in question is correct--because two people were
voted for--then it does appear that many voters were denied their vote by a
confusing ballot.  (All of this suggests that ballot changes should be tested
before being used.)  If the report is right and assuming as seems likely than
most of these votes would have gone for Gore, we have a thoroughly illegitimate
presidential election--one in which the "winner" has neither a majority of the
popular vote nor should he have a majority of the electoral vote--because the
vote should reflect what the voters were attempting to do.  This is an extremely
unfortunate result and one that is hard to defend as legitimate which ever side
of the political fence you are on.  Still, I do not think that electors should
be free to disregard the popular vote in their states.  What electors should do
even in a state where the recorded vote does not reflect actual preferences is a
still a difficult question.  There is no doubt, as suggested, that political
preferences drive the way people see these issues and many turn on a dime
depending on political advantage.  According to Shields on the Lehrer show, he
was told by people in the Bush camp that they--beleiving that Gore would win the
electoral vote but not the popular vote--were preparing a legal challenge to the
electoral college.  Is this report correct?  Would the challenge have been a
plausible one?  I find it far fetched.

Michael Curtis
Ward Farnsworth wrote:

> >3) If the ballot violates state law, it would make sense to invalidate it
> >and revote, assuming Florida law does not expressly prohibit this.
>
> 1.  In an important sense it's too late to "revote." Allowing those who
> voted before to decide afresh who to vote for would put them in a position
> that I can't imagine being permitted.  How many of them do you think would
> vote for Ralph Nader (or for that matter Pat Buchanan) *this* time around?
> Surely there is something important about the principle that when we vote,
> we vote at the same time rather than sequentially.  It has to do with
> putting voters on an equal footing.  I would much sooner tolerate some
> errors in recording peoples' preferences (which are inevitable anyway) than
> start fiddling with the other principle.
>
> 2.  Another of the many bothersome aspects of this idea is the spectacle of
> deciding whether to enforce the law only after the result it (perhaps) has
> produced has become clear.  I am reminded of the time George Brett hit a
> home run for the Kansas City Royals, and the Yankees' manager (Billy Martin)
> *then* emerged from the dugout to point out that Brett's bat had too much
> pine tar on it.  Okay, the analogy breaks down; the pine tar didn't cause
> the home run, but it's possible that the voter confusion had real
> consequences for the election.  But as I understand it the ballot was
> reviewed, approved, and distributed by both parties in advance of the
> election.  If Gore had won (or wins), the objections to the form of the
> ballot evaporate or never get made.  Is there not something untoward about
> deciding now -- with the freakish political consequences of this district's
> votes clear in retrospect, and uppermost in everyone's mind -- that the
> ballot turned out to be more confusing than it should have been, and that we
> therefore need to give everyone in the district who voted on election day a
> chance to redecide how to vote?  Sounds like heads I win, tails you lose; it
> raises nice strategic possibilities for future designers of ballots in close
> elections.
>
> 3.  It appears that preferences about the political outcome are driving many
> of the arguments being made in public discussion of this issue.  (I
> understate matters.)  But obviously the relevant question is general, and
> should only be considered in a general way:  if you can find a district
> whose votes could have swung a presidential (or other) election, and it can
> be shown that the residents of that district were confused by the ballot
> form used (or that it had legal defects), do you then let the people in that
> district have a new little election of their own a couple of weeks later to
> decide the entire race, knowing full well that is what they are doing?  If
> the answer is "yes," I think we are fundamentally altering the notion of
> equality between voters and finality in elections, which normally contain
> some share of confusion, mistakes, and even fraud.  If Gore is a statesman
> (and otherwise seems to lose the election), he will ask the Florida
> Democrats to drop the litigation and devise a better ballot for next time;
> and that is indeed what I expect he will do.
>
> __________________________________
>
> Ward Farnsworth
> Boston University School of Law
> 765 Commonwealth Ave.
> Boston, MA  02215