Machine vs. hand counting

[Darren Hutchinson]

"If we allow parties to selectively challenge where (after the fact) they
perceive
random error to have gone their way, then the process breaks down into
endless legal wrangling as parties will have every incentive to challenge
wherever they suppose that they will stand to gain.  This means that the
randomness will drop out, without corresponding confidence in the
likelihood of greater accuracy.  This is particularly troubling if there is
a corresponding sense that the rules of the electoral process are up for
grabs after the election."
>
I do not agree with the "floodgates" arguments that have been floating about
of late.  With respect to the arguments that Palm Beach County should
conduct a new election, under Florida law, the conditions for such are quite
discrete: the plaintiff needs to demonstrate a lack of compliance with the
election law (substantial compliance is sufficient) and the violation must
produce an election that does not reflect the "will of the people" -- which
means that the irregularity affected the outcome of the election.  This will
not occur in the ordinary circumstance and, accordingly, most suits seeking
a similar remedy have failed.  Furthermore, with respect to demands for
manual counts, state law gives discretion to the canvassing boards -- not to
a lone individual -- and the recounts are conducted before each member of
the canvassing board and before representatives of both candidates.  This
process seems to ensure fairness; it has also existed for some time now
without the seamless troubles that many have argued lurk on the horizon.
The prominence of this election has only revealed a system of recounting
that has already existed.  Without any empirical evidence that the current
structure of tough case law and statutory requirements fails to protect the
electoral process from endless abuse, I am unpersuaded by the floodgates
arguments.
>
"There is also something unsettling about the reintroduction of subjective
assessments by local election officials.  Registrar discretion
(particularly in the South) is something whose time has hopefully passed.
The advantage of a straightforward objective process, such as machine
counting, is that it reinforces the concept of error being random and the
system not being subject to strategic misuse.  In this regard, the use of a
different counting mechanism in four counties, but not across the state
only compounds the issue, even if, as Ann points out, there does not seem
to be any federal question in this."
>
But the "mechanical" process is subjective.  The design of a ballot can
cause confusion -- as the Palm Beach scenario vividly demonstrates, and the
decision to use "punch ballots" rather than computerized voting (in some
jurisdictiosn) brings about a certain amount of error that may not exist
statewide.  I would not describe this as a "random" result.  The election
laws in Florida and many other states -- including Texas -- permit
recounting to correct for potential mechanical errors.  The early reporting
of irregularities allows diligent candidates and voters to challenge
discrepencies.  Furthermore, remote jurisdictions in Florida (and elsewhere)
do not even use mechanical voting; they only use manually marked and scored
ballots.  Should their votes be discarded?