Chads and ballots

[Greg Sisk]

To respond just to Question 5, in terms of the uncertainty in
approach and changes in counting mechanism mid-stream, the Associated
Press reported on Saturday that

* the Palm Beach County election commission initially began on
Saturday morning with (1) the "one-corner" standard, by which a
ballot was counted if one of the four corners of the chad was
detached,even if the other three corners were firmly attached,

* but the county commission then switched later that morning to the
"sunlight" test -- whether one could see the sun through the chad,
but that sunlight test didn't produce new results (i.e., they
couldn't see the sunlight through the chads on these ballots),

* so Palm Beach county returned that afternoon to the one-corner test
which resulted in additional votes for Gore.

The volatility of these approaches, which suspiciously seemed
designed to adopt whichever standard results in the most new votes
for Gore, casts further doubt on the legitimacy of this handcount.
Of course, the Gore campaign is not satisfied even with that liberal
approach, having now filed suit against Palm Beach County insisting
the county is obliged to follow the "pregnant" chad standard, by
which a vote is counted if the chad is even dented, while not even
slightly detached from the ballot.

Let me add that I appreciate the concern expressed by many that
undercounting might occur in counties using punch-hole ballots.
However, it must also be noted that these counties -- particularly
Palm Beach County -- are dominated by Democratic-affiliated
officials, including those officials controlling the county elections
administration.  If those Democratic leaders have failed to adopt
more accurate means of casting votes, then I have little sympathy
when Democratic candidates complain after-the-fact and attempt to win
the election in overtime by persuading their allies in these counties
to not only agree to multiple recounts but then to adopt standards
that generously treat ballots as more votes for the preferred
candidate.  Moreover, the complaint about endemic undercounts in
punch-hole ballot counties has been undermined again today, as we now
find that Miami-Dade and Broward Counties have rejected further
handcounts when counts of sample precincts failed to find significant
errors in the punch-hole ballots.

By contrast, and suspiciously, the county that presses ahead with
manual handcounts is Palm Beach County, a county where the elections
supervisor (a Democrat) is under incredible pressure from members of
her own party for her primary role in designing the infamous
butterfly ballot (which she innocently devised with the intent of
helping voters by using larger print).  In sum, I don't see how
members of this list can be surprised that many are troubled and
skeptical about a process that allows a Democratic-partisan majority
on a county election board (including an elections supervisor who has
powerful incentives to salvage her damaged political career by
assisting her fellow Democrats) determine what does and does not
count as a vote in the county.  Even in the informality of a faculty
meeting, I do not imagine any of us would regard this approach to
tabulating votes as remotely fair.

Greg Sisk

>Several miscellaneous thoughts in response to various points made in recent
>postings:
>
>1.  I think Sandy over-estimates the present potential of the American
>public for rioting in the streets -- especially given that any arguably
>arbitrary action of the Sec fo State would, if the circuit judge's opinion
>stand up, be subject to judicial review.
>
>2.  I think Hatch and Mitchell are both on the old side for S Ct
>appointments; most Presidents like to pick somewhat younger people.
>
>3.  Another question about the legal context -- Tom Grey, like others, says
>there were 72 hours  to ask for recounts -- but isn't it 72 hours or before
>the county certifies, whichever is later? -- and I wonder whether anybody
>knows whether any of the counties where recounts were plausible certified
>as early as Friday.
>
>4.  In response to Greg Sisk -- if the Republicans didn't ask for any
>recounts, presumably it's because their counties offered no benefits to
>Bush on a recount, and I gather that's in large part because these counties
>already get a good count by use of different methods of counting.  Mike
>Masinter and others have made this point at greater length andwqith greater
>sophistication
>
>5.  How does Greg say that the Palm Beach canvassers changed the standards
>for counting votes?  From what I read in the NY Times of Monday, they had a
>pre-existing standard that if as much as one corner of the chad is detached
>counts as a vote.  And they haven't gone the more generous route of
>counting a "pregnant chad".  So I don't see how they've changed midstream
>in favor of Gore.
>
>6.  As a prospective matter, it maight make sense -- if these ballots are
>retained -- to have a tougher definition, essentially one saying that it's
>a vote if the machine can count it.  Then educate voters vey carefully,
>with notices before and at the polls, that they have to punch the hole all
>the way through for the vote to count.  This would eliminate the need for
>hand recounts.
>
>7.  I agree with some of the comments, including Mark Scarberry's, that the
>results in Florida are effectively a tie.  But what to do in such a case?
>I think that the best we can do is count up the votes as best we can, and
>then let probability take over:  If one candidate beat the other by a wide
>margin, then counting error will not lead to the wrong reuslt; if it was
>really close, then one candidate or the other might get more votes tallied,
>but if we do our best to eliminate biased error the candidate who SHOULD
>have gotten the highest tally will be more likely -- though not certain --
>to get the highest.  The closer it is, the more it becomes like a coin
>flip. That's not great comfort in a Presidential election, but at least we
>know that the outcomes of a lot of close ball games are turned around by
>missed calls.  Recognizing that there is an unfortunate probabilistic
>aspect to all of this does not deprive the system of legitimacy.
>
>Rich Friedman
>
>At 05:42 PM 11/14/00 -0600, you wrote:
>>I appreciate Greg's thoughtful reply.  I agree with him that if Bush
>>becomes president *and* rises to the occasion by actually providing
>>leadership and, even more, reaching across party lines (as I personally
>  >believe is his wont, though I also believe he has no real appreciation of
>>the fact that Tom DeLay and Trent Lott are not like Texas legislators),
>>then it might not matter all that much in four years how he got there
>>(though I'd still bet he'd be a one-term president).  If the election is
>>based on what Gore supporters reasonably view as the "arbitrary" action of
>>the partisan Florida Republican Secretary of State, then I think that all
>>bets are off and there will be rioting in the streets on inauguration day,
>>with untold harm to the stature of the United States abroad.
>>
>>More bets:  If George Bush becomes president, the first nominee for the
>>Supreme Court will be Orrin Hatch.  If Al Gore becomes president, the first
>>nominee for the Supreme Court will be George Mitchell or, more of a long
>>shot, John Edwards.
>>
>>sandy

--
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