Bush Complaint Online....

[Darren Hutchinson]

How can undercounting by machine "affect everyone equally" when some
counties do not use machines to count votes?

Also, I would like to reiterate the purpose of the handcount/recount
legislation -- to challenge and correct irregularities.  Again, if the right
to vote is as important as we claim it is, then permitting manual
corrections in limited circumstances seems important and consistent with the
importance our country attaches to voting.  By the way, I am not opposed to
parties requesting extensions of time for recounts with good reason; it just
seems that Bush's federal lawsuit would contradict the spirit of such a
request (because he says that handcounts are dangerous).
    -----Original Message-----
    From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of John C. Eastman
    Sent: Sunday, November 12, 2000 6:32 PM
    To: CONLAWPROF at listserv.ucla.edu
    Subject: Re: Bush Complaint Online....


    The problem is that systematic undercounting by machine is not an
irregularity, but part of the process that affects everyone equally.  It is
not healthy to require that a candidate make a pre-emptive request for a
hand recount in his strong counties on the chance that his opponent might
make a similar request elsewhere in the state.  Talk about an escalating
arms race!  Perhaps the better rule is to allow a candidate to respond to a
hand recount request by his opponent by designating a like number of
counties for hand recount, even after the 72 hour period has expired.  The
Supreme Court has a rule addressing a similar problem with the filing of
cert petitions -- a party who did not timely file a petition has an
additional 30 days to file a cross petition if another party does file a
petition within the original allotted time.  S.Ct. Rules 12.5, 13.4.
    -- John Eastman

    Darren Hutchinson wrote:

         I still believe that the argument of "unfairness" would permit more
abuses than allowing a party to contest irregularities expeditiously.  The
election statute provides a very brief limitations period precisely to
protect the finality that many have argued is important in the elections
context.  Furthermore, the idea that parties and candidates select areas for
recounts allows for targeted challenges of irregularities.  A rule that
requires an "all or nothing" recount system would only promote more delay,
would constitutute "overkill," as counties without irregularities would have
to undergo recounts, and would probably cause election officials to
routinely deny recounts even in the face of compelling evidence of
irregularities because a recount in one jurisdiction would require recounts
in every jurisdiction.  I do not believe the issue of parties meeting the
statute of limitations is one of "cleverness."  Instead, the rule requires
parties -- who certainly know the election law, given the frequency of
attempts to contest elections -- to respect the finality of elections and to
respond quickly to irregularities (rather than waiting for their opponents
to act, demanding a "me too" recount, and needlessly prolonging the
election).
            -----Original Message-----
            From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Leslie Goldstein
            Sent: Sunday, November 12, 2000 3:31 PM
            To: CONLAWPROF at listserv.ucla.edu
            Subject: Re: Bush Complaint Online....

            I did hear on TV today that some of the counties (I have no idea
of how many) cannot have manual recounts because they have no
ballots--voting is strictly electronic.  This made me feel somewhat better
but still I am troubled by the idea of doing handcounts ONLY in the four
most pro-Gore counties.  Why should it be up to the Bush campaign's
cleverness about deadlinesfor there to be a fair vote-count state-wide?  On
the other hand, I consider the Baker claim that hand re-counts introduce
fraud to be specious.  A machine cannot tell if it is jamming on a bent
chad; a person can.Every electronic recount changes the number of valid
votes because the machine breaks loose more of the chads--a great example of
the heisenberg uncertainty principle that measurement itself changes certain
results!
            Leslie
            Darren Hutchinson wrote:
                Here's a link to the Bush complaint:
http://www.washingtonpost.com/wp-srv/onpolitics/elections/injunctionrequest1
11100.htmNotice that one of the equal protection claims argues that
conducting handcounts in select counties arbitrarily denies equal protection
to voters outside of these jurisdictions.  This argument seems untenable,
because it suggests that a statewide manual count must always occur -- if at
all; this logic would deprive candidates of the ability to demand closer
scrutiny of voter irregularities in discrete voting districts.  The election
statute allows either candidate to seek a recount and manual count.  The
fact that Bush and Cheney failed to do so does not mean that they or voters
in jurisdictions not subject to manual counts have been denied equal
protection.  These voters/Bush have simply waived their right to a manual
count.  The statute, however, gives everyone an equal opportunity to seek
manual scrutiny of the ballots.
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