Alleged chicanery

[Thomas Smith]

I take your points, Bryan.  It would not surprise me at all if the report I
heard amounted to wishful thinking by Republicans, which, as you may not
know as a "card-carrying liberal" is a vice to which Republicans are
especially prone.  I also completely agree with you that the length of time
it takes to count absentee ballots is ridiculous, if not scandalous.  And
inherently raises the temptation to use them fraudulently.  Since the cat
Eugene is away, and discipline seems to have broken down on Conlawprof
anyway, let me raise another rather more statistical than legal
point.  There has been of course much emphasis on how close this election
has been.  But in Florida, the closeness of the race just has to raise
suspicions of fraud, from both camps.  What are the odds that an honest
election in which 6 million votes were cast would come  within 300 votes of
a tie, even if you were trying to get that result?  It is like two cars
starting 100 miles apart on an open plain driving toward one another.  If
they collide, you almost have to suppose they were steering at each
other.  In Florida, I suspect that diffuse fraud, by both camps, is
contributing to the closeness of the race.  I suspect officials are keeping
track of how much other counties are adding to the other candidates total,
and then trying to counter that with counter fraud of their own.  I must
say the alternative explanation, that 6 million voters just happen to split
that evenly, strikes me as much more improbable.  We are talking of a
difference of .0002 percent.  That is a purity not found in nature. Note
this result is more likely is there is fraud on both sides, which I
strongly suspect is going on in this recount process.

At 03:06 PM 11/10/00 -0800, you wrote:
>As a follow-up to my San Diego neighbor Thomas Smith's comments (my school
>is not too far down the road from his) it should be noted that Bush's lead
>over Gore in Orange County among votes already counted is 56-40%, and in
>San Diego County only 49-46%  And in other parts of California, and in
>Oregon and Washington, Gore mostly did a lot better than that.  While
>absentee ballots used to trend overwhelmingly more conservative than
>non-absentee ballots, vastly increased numbers of Californians use them
>now, since you no longer have to have a special reason.  A card-carrying
>liberal like me voted absentee in 1998, though I deliberately chose to "do
>it the old-fashioned way" in this election.  LA Democrat Jane Harman
>actually appeared to lose her seat in 1994, and absentee ballots put her
>back over the top.  Thus, I am not that concerned that her paper-thin
>pre-absentee majority this year will be overturned by absentee votes.  And
>there is a reasonable chance that Maria Cantwell may reclaim Sen. Slade
>Gorton's current 4,000-vote lead over her in Washington State, once the
>500,000-odd Washington State absentee ballots are counted, many of which,
>I heard one report, are from the (heavily Democratic) Seattle area.
>
>Thus, it seems highly unlikely that Gore's popular-vote lead (which
>rebounded from only 90,000 early Thursday to about 200,000 today --
>49,144,000 to 48,944,000 according to CNN's count that I checked a few
>minutes ago) will be erased by uncounted California or other West Coast
>absentee ballots.  In fact, for reasons suggested above, Gore's lead may
>be further bolstered.
>
>The broader and interesting question is why it takes so darn long to get
>the relatively small number of absentee ballots counted, when vastly
>greater numbers of regular ballots are tabulated promptly on election
>night.  I suppose physically opening envelopes and taking needed extra
>measures against fraud (probably a greater concern with absentee ballots
>since they do not go directly from the voters hands into sealed ballot
>boxes) account for it.  It seems crazy and very much contrary to the
>public interest in speedy and definite resolution of elections, however,
>to have this absentee vote counting dribble in up to two weeks after the
>election is held.  The deadline for absentee ballot voting (and receipt of
>such ballots) should be moved up to at least two weeks before the
>election, so that ALL votes can be promptly counted by, at the latest,
>close of business on the day after the election.  I wonder if anyone has
>proposed state or federal legislation in that regard?
>
>Just to throw in another interesting point:  While everyone has focused on
>how close the national race is, and in some key states like Florida (and a
>smattering of smaller ones), it's perhaps equally interesting how
>polarized most of the country is, and how Gore and Bush have surprisingly
>big majorities in most states they won.  E.g., Bush stomping on Gore in
>Southern and some Western states where Clinton was at least competitive,
>Gore stomping on Bush in states like Illinois (12-point Gore lead) and New
>Jersey (15 points) that used to be regarded as swing states.  And Gore's
>landslide margins in California (12 points) and especially New York (25
>points!), paralleling Bush's lopsided margins in a whole laundry list of
>conservative states.  The electoral map does not look anything like a
>checkerboard.  Rather, there are three big swathes of "Gore Country"
>(Pacific Far West, Upper Midwest, and Everything Northeast of DC except
>NH, where Gore ran very close), and ONE huge swathe of "Bush Country"
>(everything under and in-between, anchored in, not surprisingly, Texas).
>
>Bryan Wildenthal, Thomas Jefferson School of Law [San Diego, Cal.]
>>-----Original Message-----
>>From: Thomas Smith [mailto:tacsmith at ACUSD.EDU]
>>Sent: Friday, November 10, 2000 11:30 AM
>>To: CONLAWPROF at listserv.ucla.edu
>>Subject: Re: Alleged chicanery
>>
>>On the irresponsible conspiracy theory front, I would offer the
>>following.  If you look at the recounts coming out of the southern
>>Florida counties, the ratios of new Gore votes to new Bush votes appears
>>to me rather remarkable.  As I am trying not to obsess over this election
>>more than I already have, I do not plan to pursue this inquiry, but
>>consider:  New votes supposedly result from "chad" falling out of the
>>punched machine ballots, therefore all candidates' votes increase. (Chad
>>are the little paper rectangles you punch out in machine ballots;  when
>>they stick, the machine does not read the vote;  with additional runs
>>through the machine, they tend to fall out, so everyone's votes
>>increase.)  With any appreciable sample, one would expect the numbers of
>>additional votes for each candidate to be roughly in proportion to the
>>ratio of the votes already counted.  So if a county went 3 to 2 Gore, you
>>would expect the new votes to be roughly in the same ratio.  Yet, purely
>>by eyeball, the new votes coming out in the recount down south seem to me
>>to be way out of line.  It seems that the Bush chad is mysteriously more
>>sticky than the Gore chad.  The humidity, perhaps?  Or perhaps someone is
>>giving the will of the people a little help.  But I stress, this is
>>strictly by eyeball, and if you ran the numbers, it might well prove just
>>another example of how hard it is to do statistics in your head.  On the
>>other hand, it might prove that a (I would think) pretty convenient form
>>of vote fraud is going on right under the eyes of the none too watchful
>>media.  You should be able to calculate how improbable the recount
>>results are.  If they are up in the 1-in-1000 chance of happening as a
>>result of a random process (as chad falling out of ballots presumably is)
>>then I fear the will of the people in Florida may be subverted.  BTW, San
>>Diego news outlets reported this morning that there are 1 million
>>uncounted absentee ballots in California, mostly from Orange and San
>>Diego counties, that remain uncounted.  If these go 60/40 for Bush, which
>>is quite possible, that would come close to making up or exceeding Gore's
>>lead in the popular vote.  How quickly our Califorinia public servants
>>will get around to counting these votes, I am not sure.
>>
>>Tom Smith
>>
>>At 11:11 AM 11/10/00 -0600, you wrote:
>>>This is precisely what I think is unfortunate and dangerous in
>>>rhetoric.  There is a question about whether a ballot format -- designed
>>>and approved by the Democratic supervisor of elections with the goal of
>>>making the ballot more easily read by the elderly -- was confusing.  All
>>>understand that issue and people disagree about the answer and even more
>>>about the solution, if any.  There simply is no responsible basis for
>>>charging any "corruption" or elections being "stolen," much less that
>>>Florida Governor Jeb Bush has had anything to do the present situation
>>>at all.  One may disagree with Jeb Bush as a political leader, but
>>>irresponsible charges of some intentional conspiracy to steal an
>>>election are not worthy of being repeated in any forum.
>>>
>>>>Fair enough; and so I will return to Michael's question of some days
>>>>ago.  You asked how would we "prove" that there had been confusion
>>>>among voters; at the time no one knew the extent of the double voting
>>>>for president and the extent of the spoiled ballots.  Now that we do
>>>>know that it was very large, does that, in-and-of- itself not raise a
>>>>presumption, which a court should investigate?  And, second, do the
>>>>voters -- not the candidates -- have an equal protection and due
>>>>process right to a clear ballot that they can understand and vote, with
>>>>the expectation that their votes will be counted?
>>>>I do not, by the way, think a revote in the country will give Gore
>>>>Flordia; my guess is that a revote will have a lower turnout that
>>>>before, and that Gore, even if he wins a gerater % of thevotes will
>>>>have fewer total vote; but then Bush can take office without the cloud
>>>>of an "unfair" or "stolen" election; if I were a Democratic top
>>>>official, which I am not, I would accept the outcome and use it to make
>>>>the case for the corrupt Republicans, led by two Govs. Bush who stole
>>>>the electon in Florida.  With Gore having the popular vote, and an odd
>>>>co-alition of old white and Jewish folks  along with Blacks screaming
>>>>the election was stolen, it will resonate well in much of the
>>>>country.  The Dems. then take Congress big in the mid-term elections
>>>>and sweep into the White House in 2004, as Andy Jackson did.  A revote
>>>>would avoid this, and probablay put Bush in the White House.  But, it
>>>>would make the process fair.
>>>>Michael McConnell wrote:
>>>>>  I have not questioned Paul's motives, but only suggest that all of
>>>>> us confine our discussion to the facts. Michael McConnell
>>>>>University of Utah College of Law
>>>>>332 South 1400 East Rm. 101
>>>>>Salt Lake City, UT 84112
>>>>--
>>>>Paul Finkelman
>>>>Chapman Distinguished Professor
>>>>University of Tulsa College of Law
>>>>3120 East 4th Place
>>>>Tulsa, Oklahoma  74104-2499
>>>>918-631-3706 (office)
>>>>918-631-2194 (fax)
>>>>paul-finkelman at utulsa.edu
>>>>
>>>
>>>--
>>>Gregory Sisk
>>>Richard M. & Anita Calkins
>>>   Distinguished Professor
>>>Drake University Law School
>>>2507 University Avenue
>>>Des Moines, Iowa  50311-4505
>>>515-271-4184
>>>greg.sisk at drake.edu
>>
>>Thomas A. Smith
>>Professor of Law
>>University of San Diego
>>5998 Alcala Park
>>San Diego CA 92110
>>619. 260. 2318
>>tacsmith at acusd.edu
>>tacsmith at home.com

Thomas A. Smith
Professor of Law
University of San Diego
5998 Alcala Park
San Diego CA 92110
619. 260. 2318
tacsmith at acusd.edu
tacsmith at home.com
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