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The Voting WarsFrom Florida 2000 to the Next Election Meltdown
By Richard L. Hasen
Yale UNIVERSITY PRESSCopyright © 2012 Richard L. Hasen
All right reserved.
Chapter OneAll I Really Need to Know I Learned in Florida
Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes? I mean, it couldn't be clearer. I mean, why don't we go to that standard?" United States Supreme Court Justice Sandra Day O'Connor sounded exasperated, her voice rising.
Al Gore's attorney, David Boies, was patiently trying to explain to Justice O'Connor and the other justices at the oral argument in Bush v. Gore how the Palm Beach County canvassing board decided which votes to count for Gore, George W. Bush, or the other eight presidential candidates in the November 2000 election when the board manually recounted some of the ballots. Fewer than two thousand votes separated Bush from Gore on election night in Florida, and over the next few weeks, as Gore succeeded in getting some Florida ballots recounted by hand, the number fell below two hundred votes. Now, a month after the election, with the winner still undetermined, the Supreme Court was deciding whether to allow a further statewide recount of certain ballots, as ordered by the Florida Supreme Court. Gore was hoping that recount would finally give him the lead, Florida's electoral votes, and eventually the presidency.
The justices fired questions about the arcane world of voting machines and about Florida's byzantine laws and county-based system for hand recounts and contesting election results. Palm Beach County, like fourteen other Florida counties including its five largest, used "punch card" voting machines for casting ballots. Voters slid cardboard cards with pre-scored, numbered rectangles into a slot in a machine. The voter then flipped through a list of candidate names for each office that sat over the part of the machine holding the punch card. The list lined up with a set of circular openings next to the names of each candidate. The circle was the gateway to one of the pre-scored rectangles on the loaded punch card. The voter was instructed to use a metal pin, or "stylus," to punch through the rectangle, thereby releasing the perforated paper rectangle, or "chad," corresponding to a vote for the candidate.
At the end of the voting, election officials would feed the punch cards into another machine, which quickly counted the punched-out rectangular holes and produced vote totals for each candidate. The punch card system was, in technological terms, an antique: IBM had developed it for use with its accounting machines before World War II. By 2000, voting was one of its last remaining uses.
The reason for this longevity was not the system's reliability. The punch card technology was flawed: sometimes the chad was only partially detached or just indented; sometimes the voter did not load the card correctly into the machine; the machines used to count the punch cards missed some ballots or failed to count all the holes. Some of these machines were so stuffed with old chads that there was no place for a newly punched chad to go, leaving the chad partially attached to the ballot. My wife bought me a punch card voting machine from Lee County, Florida, on eBay after the controversy ended. Years later, whenever I carried it to class to show it off to my students, I would leave a trail of chads falling from the machine.
The vote in Florida was so closeon election night, Bush led Gore by only 1,784 votes out of almost 6 million votes castthat state law provided for a machine recount. The votes were fed again into the same machines that counted them originally. When Gore was still behind after that machine recount, he asked for a hand recount of ballots in Democratic counties, where a large number of recovered votes were likely to be for him. There was much squabbling about when, how, and whether to do such hand recounts. One law firm alone eventually handled forty election-related lawsuits for the Florida secretary of state.
Palm Beach County was one of the heavily Democratic areas that conducted a partial hand recount, the nature of which came under close Supreme Court scrutiny at the Bush v. Gore oral argument. Florida law required that when the county canvassing board, the body in charge of resolving election disputes, conducted hand recounts, the board had to judge the "intent of the voter," as evident from the physical condition of the ballot, in deciding how to count a ballot.
Boies explained to the justices how the Palm Beach board treated "dimpled" and "hanging" chadspunch cards with indented or partially separated chads in the location corresponding to votes for a particular candidate. He said that the chairman of the canvassing board testified in a Florida trial court that to determine the intent of the voter, "you looked at the entire ballot, ... if you found something that was punched through all the way in many races, but just indented in one race, you didn't count that indentation, because you saw that the voter could punch it through when the voter wanted to. On the other hand, if you found a ballot that was indented all the way through, you counted that as the intent of the voter."
What got Justice O'Connor so worked up was Boies's statement that the "other thing that they counted was he said they discerned what voters sometimes did was instead of properly putting the ballot into the slot where it was supposed to be, they laid it on top, and then what you would do is you would find the punches went not through the so-called chad, but through the number."
Justice O'Connor's exasperation with Florida voters was understandable. Few people then realized that using a punch card machine to cast a vote that would actually count was not straightforward. Chief Justice William Rehnquist, in his later concurring opinion in the Supreme Court's Bush v. Gore decision, highlighted the instructions given to Florida voters about using punch card voting machines: "AFTER VOTING CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD."
The Palm Beach County voters were not alone. A study conducted by the Caltech-MIT Voting Technology Project determined that up to a million ballots cast nationwide in the 2000 election (out of about 105 million total ballots) did not record a valid vote for president. A small number were from people who intentionally did not cast votes for president. But these deliberate "undervoters" were few. How many people would go to the polls on Election Day and choose not to cast a vote in the marquee race, the one that got far more media and public attention than any other?
Consider this: In October 2003, Californians went to the polls to decide whether to recall Democratic governor Gray Davis. They ousted Davis and installed bodybuilder-turned-actor Arnold Schwarzenegger as California governor. The recall was a media circus, with 135 candidates on the ballot, including former child actor Gary Coleman, the watermelon-smashing comedian Gallagher, and a porn star. The ballot in that special election contained only four questions. Two were "Should Davis be recalled?" and "If he is recalled, who should replace him?" The other two were ballot propositions. In Los Angeles County, where I live, we voted on punch card machines. I filed a legal brief in the United States Court of Appeal for the Ninth Circuit supporting efforts by the ACLU to force a delay in the election until more-reliable voting machines could be put in place, but with no luck.
According to official statistics, an astonishing 9 percent of Los Angeles voters cast a ballot that day that did not include a valid "yes" or "no" vote on the recall question. In contrast, in Alameda County, which is demographically similar to Los Angeles but used electronic voting machines, the undervote on that "yes" or "no" question was less than 1 percent. The only plausible explanation for this disparity was the voting technology. Whatever might have caused a 9 percent undervote in L.A. County, it wasn't that massive number of voters in Los Angelesbut not in Alamedawere turning out at the polls only to not cast a vote on the most important question on the ballot.
In 2003, the memory of Florida 2000 was still fresh. When Angelenos went to the polling places in the recall election, they found signs everywhere urging them to check for hanging chads. Poll workers helped them check their ballots. Still, 9 percent of those ballots did not record a vote.
If it is hard to blame Los Angeles voters for this undercount, it is even harder to blame Florida voters in 2000. At that time, virtually no one had heard of chad, and people assumed that the votes they cast at the polling place, on machinery they had used for years, would be counted accurately and fairly. In retrospect, who could blame the voters of Palm Beach County for casting their ballots incorrectly?
Not that voter error in Florida in 2000 was always excusable. Putting the punch card on top of the machine rather than in the slot and poking holes in the numbers looks like a bone-headed movethough maybe not for a new voter who had never seen one of these machines before and perhaps could not read the English-language instructions. But most of the ballots that went uncounted in Palm Beach County had a more conventional problem, such as a dimpled or hanging chad.
The overall statistics showed that voters using punch card voting machines were many times more likely to cast a ballot that would not be counted than voters using other technologies, such as an optically scanned ballot. Punch card voters were not stupid voters; they were voters stuck with bad technology.
Throughout Florida in 2000, about 180,000 ballots, cast on several different types of voting machines, did not record a valid vote for president. Punch cards, which performed the worst of all these types, were about five times more likely than optical scanners to fail to record a valid vote. The problems ran the gamut from no vote recorded to more than one vote recorded for president to marking the ballots with pen and to writing in a candidate whose name was already printed on the ballot. On some over-voted ballots the voter's intent was clear, such as when voters marked a vote for Gore and also wrote "Gore" on the line for write-in votes. But the machines were programmed not to count such votes.
If Palm Beach County voters deserve little blame for the voting failures on Election Day, others are not so innocent. The Palm Beach machines were not the usual bad Votomatic punch card machines but an even worse knock-off brand known as Data-Punch. On tests run just before the November 2000 election, the Miami Herald found that the Data-Punch machines had an error rate of over 20 percent. Some machines recorded no valid votes at all.
Not only did these voters use especially bad punch card machines, but they were also the victims of a particularly bad ballot design: the infamous "butterfly ballot." Most Floridians voting on punch card machines saw the list of all presidential candidates on the left side of the ballot; a hole to the right of each candidate's name allowed voters to use the stylus to punch out the chad on the ballot beneath. Palm Beach had a different design: the candidates' names appeared to both the right and the left of the holes, with arrows pointing toward the center. The problem with this layout was how the holes lined up with the candidate information. The designation for Bush and his vice presidential candidate, Dick Cheney, appeared on the top left, with Gore and his running mate, Joe Lieberman, listed just below Bush on the left. But on the top right, staggered between Bush and Gore on the left, were Reform Party candidate Pat Buchanan and his running mate, Ezola Foster.
The ballot design was very confusing, especially to many of the elderly voters who populate Palm Beach County. Some who wanted to vote for Gore punched out the chad corresponding to Buchanan; to the left of the hole for a Buchanan vote was the word "(DEMOCRATIC)," which appeared as part of the ballot designation for the Gore-Lieberman ticket. Other voters punched both Buchanan's hole and Gore's hole. One hole was roughly across from Gore's name, and the other was roughly across from his running mate, Lieberman. These voters probably meant to vote for the Democratic presidential candidate and his vice presidential running mate, but a ballot with more than one vote was an invalid overvote.
This design was calamitous from the point of view of Palm Beach County voters. Pat Buchanan was no friend of Israel or Jews; yet in heavily Jewish Palm Beach County he received 3,407 votes, about 2,800 more than political scientists calculated he would have received (based on his votes elsewhere) had the butterfly ballot not been used. The Miami Herald quoted one Israeli-American Palm Beach County voter as saying that "Yasser Arafat could have gotten more votes here." Even Buchanan agreed that most of those "Jews for Buchanan" voters were trying to vote for Gore.
Ironically, this design was a conscious and well-intentioned choice by Palm Beach County election official Theresa LePore. Florida made it relatively easy for third party and independent candidates for president to get on the ballot, and a total of ten candidates were running for president that day. LePore thought that keeping all the candidates on one ballot page would require using a font so small that elderly Palm Beach voters would have trouble reading it.
But of course the design did not help voters in heavily Democratic Palm Beach County. LePore's life became "hell" after Election Day as Democrats sent hate mail accusing her of being a "closet Republican" who cost Gore the election. Though some press reports described LePore as a die-hard Democrat, others said she had no use for either major party and just fancied herself a bureaucrat. Whatever her true political leanings, there was no evidence that LePore had some kind of secret plan to help Bush.
Palm Beach was not the only county with serious ballot design problems. Though it got much less national attention, the problem was as bad if not worse in Duval County. There, election officials threw out more than 26,000 ballots, most of them with more than one vote for president. A New York Times analysis showed that "nearly 9000 of the votes were thrown out in the predominantly African-American community around Jacksonville, where Gore scored 10-to-1 ratios of victory." Duval's presidential ballot went onto a second page to fit Florida's ten candidates, and it looks as though many voters voted once on each page, casting two votes for president and thus invalidating their ballots.
Why would they do this? "Democratic Party workers instructed voters, many persuaded to go to the polls for the first time, to cast ballots in every race and 'be sure to punch a hole on every page,'" a lawyer for Duval Democrats told the Times. A sample ballot printed in the local paper (which by law had to accurately represent the final ballot) also told voters to vote on "every page." The actual ballot contradicted these instructions, saying to vote on "appropriate pages." Local election officials pledged never to use the two-page design again.
Democrats sued over what happened in Palm Beach County but not over Duval, which looked at least partially like a self-inflicted wound. But what could a court do about the problems in Palm Beach County? Constitutional scholar Erwin Chemerinsky came to Florida and argued in state court for a "do over" in Palm Beach County, under the theory that these voters were deprived of their constitutional right to equal protection when they cast a ballot with less chance of being counted accurately.
This was a legal Hail Mary pass. The constitutional guarantee of equal protection under the law had been used in other cases to create the one person, one vote rule and to bar the use of poll taxes in state elections. But the principle had never been extended to create an equality of voters in the nuts-and-bolts running of our election system. At the time I told the Los Angeles Times legal reporter Henry Weinstein that I could not imagine many courts, especially not the conservative Supreme Court, accepting such an expansion of equal protection law. (Ironically, that's the same equal protection theory that later won the day in Bush v. Gore.)
Even tougher for Chemerinksy than the question of right was one of remedy: from at least one perspective, a partial "do over" in a presidential election seemed unfair. Voters would be free to change their votes. All of the Palm Beach County voters who had voted for Green Party candidate Ralph Nader, the consumer activist who ran as a presidential candidate to the left of Gore in 2000, could switch their votes to Gore. Nader, echoing George Wallace from 1968, had said there was "not a dime's worth of difference" between the Democrats and Republicans. Applied to Bush and Gore, this sentiment seems not to have stood the test of time. (Would Al Gore have invaded Iraq?) But Nader had attracted nearly 3 million votes nationwide, including over 97,000 votes in Florida. Seeing with hindsight that a vote for Nader was a vote for Bush, these Palm Beach voters, if allowed a revote, could well have chosen to vote for Gore, their strong second choice, rather than cast a second, quixotic vote for Nader.
Excerpted from The Voting Wars by Richard L. Hasen Copyright © 2012 by Richard L. Hasen. Excerpted by permission of Yale UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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