Comments on: What’s the hurry?

By: Y

Thu, 18 Sep 2003 21:39:46 +0000

Good piece by Dahlia Lithwick Recalling Bush v. Gore. She thinks the en banc panel may well reverse (or join the fun)... Reading the opinion, it’s hard to escape the fact that the court seems to take pleasure in applying the broad and indefensible legal principle laid out in Bush v. Gore even more broadly and indefensibly. [...] The fun has to stop now, of course. The logic of the panel (and of the original Bush decision) would hold that any election with differing voting apparatus is inherently unconstitutional. And that renders every election, past and future, illegal.

By: Brett Bellmore

Brett Bellmore — Thu, 18 Sep 2003 21:08:55 +0000

That’s just exactly it: The lack of a uniform standard was what would have allowed the counters to use one standard in the case of Gore ballots, and another standard in the case of Bush ballots. Elections and arbitrary discretion; Not a good mix.

By: Biff

Biff — Thu, 18 Sep 2003 16:21:14 +0000

Not that voters were being treated differently according to where they voted, but that that difference could be assigned after the fact, in order to achieve a preordained outcome. This is a decent argument. But is it really an equal protection argument, or simply an argument against corruption? And anyway, couldn’t a state also assign different types of voting equipment to different municipalities (with different partisan tendencies), in order to increase the chances of achieving a particular outcome? What would be the essential difference between such a scheme and the one at issue in Florida 2000, from an equal protection standpoint? Finally, having just reread the majority opinion in Bush v. Gore, I can’t find this line of reasoning anywhere in there. They repeatedly state that it is unfair to conduct the recount without a uniform statewide standard, but they don’t offer this as the reason why.

By: Brett Bellmore

Brett Bellmore — Thu, 18 Sep 2003 11:21:52 +0000

The distinction is simply that elections officials do not have the opportunity to assign punch card machines to areas one candidate is doing well in, and optical scan machines to another area where the candidate they like is getting most of the votes. The machines are where they are. Whereas in Florida, they could do exactly that: Switch from strict to lax standards, and back again, based on how it benefited the candidates they liked. THAT was the problem. Not that voters were being treated differently according to where they voted, but that that difference could be assigned after the fact, in order to achieve a preordained outcome.

By: Biff

Biff — Thu, 18 Sep 2003 05:40:17 +0000

Regarding Gore v Bush, the problem there wasn’t that some of the voters used different technologies, but rather that voters who used the same technology to vote were having their ballots counted according to different CRITERIA depending on where they voted. (And, to be a bit cynical, depending on whether they voted the way the counters liked, probably.) Not the same thing. I don’t see the distinction here. If different types of voting equipment are used, votes are, by definition, being counted by different criteria.

By: the (fair and balanced) talking dog

the (fair and balanced) talking dog — Thu, 18 Sep 2003 02:46:51 +0000

The “six iddy biddy counties” constitute something like 44% of the voters; the state official charged with elections was a party to a consent decree acknowledging that those six iddy biddy counties do NOT have reliable, fair voting machines. Admittedly, the recall is not a “regularly scheduled” election which the Cal. Sec. of State anticipated when the consent decree was entered, and the recall has its own schedule. BUT… its the ultimate bullshit “Bush v. Gore” type argument that an arbitrary deadline (remember then it was something like December 18th by some Florida statute) is more important than making sure the freaking election as a whole is fair (isn’t it, now?)

By: Matt Weiner

Matt Weiner — Thu, 18 Sep 2003 02:07:12 +0000

Well, Brett, sometimes the law itself violates the law. Originally, as I understand, people who didn’t vote in te yes/no portion of the recall were forbidden from voting for the replacement. This violated equal protection, and so was nullified. If the Oct. election date would lead to an equal protection violation, then it has to go too, because the U.S. constitution trumps state election law. We’re in agreement on optical scan. I won’t touch Bush v Gore.

By: aphrael

aphrael — Wed, 17 Sep 2003 23:59:30 +0000

Apparently someone is suing to prevent the use of computerized systems with no paper trail.

By: aphrael

aphrael — Wed, 17 Sep 2003 23:12:53 +0000

Jenny – it’s a bit bizarre to describe Santa Clara (home to Silicon Valley), Los Angeles, and Sacramento Counties as among the ‘six poorest counties’ in the state. The counties haven’t delayed bringing in the new equipment because they’re poor; they’ve delayed bringing in the equipment because they’re putting things off until the last minute.

By: pj

pj — Wed, 17 Sep 2003 23:11:00 +0000

If the 9th Circuit ruling is correct, then wouldn’t a ruling by Republican judges in October 2004 that the Presidential election must be postponed for a year, or two, or twenty, until uniform nationwide voting standards are met, and therefore that George W. Bush must remain president indefinitely, be equally correct? Ackerman is right that there is no parallel between Bush v Gore and this ruling. Bush v. Gore had the effect of making procedures follow statutory law. The 9th Circuit ruling has the effect of overthrowing election law entirely.

By: tc

tc — Wed, 17 Sep 2003 22:56:40 +0000

There are plenty of ways to run the recall election on time without dropping votes. Have humans check the 3% or whatever percent of punch card votes that the machines don’t pick up, or use paper ballots, etc. Not having the elections when the laws say they should be held is for banana republics.

By: Brett Bellmore

Brett Bellmore — Wed, 17 Sep 2003 22:36:39 +0000

Of course, Jenny, it solves this god-awful (I’m being sarcastic.) disparity at the cost of ordering that the law be violated. Something the courts shouldn’t be doing except in the most extreme situations, which this isn’t. Your print out is better than nothing, I suppose, but it still leaves the system vulnerable to slightly more sophisticated cheats. With optical scan, the paper trail IS the ballot.

By: Jenny

Jenny — Wed, 17 Sep 2003 21:09:45 +0000

Brett: The panel’s problem with punch cards ballots isn’t so much that they believe they are more error prone, but that the CA Secretary of State believes that they are – to the point of outlawing them as of March 2004. Furthermore, due to this deadline, which has been in place since about 5 months before Davis was re-elected, all but the six(?) poorest counties have replaced, or are in the process of replacing, their punch card ballots. It is this disparity that they felt was a problem. Postponing the election a few months to coincide with this deadline would solve this particular disparity. With regards to everyone worrying about problems arising because the ballots are unfamiliar, I agree that it may create problems, but I also believe that holding an election on such short notice during a time when many counties are in the process of actually transitioning will create even more problems. (less time to test the machines, less time to educate the public, etc.) At the very least, (IMHO) the election should have been sheduled for November 10th(?). This would have given everyone more time, and would have saved the State, counties, and taxpayers money, since many counties have municipal elections already scheduled for that date. aphreal: Touch screen voting does not always lack a paper trail. My County just decided to replace its punch cards with touch screen machines that print out a receipt that the voter reviews through before telling the machine whether to cast their ballot or toss it.

By: RJ

RJ — Wed, 17 Sep 2003 21:09:09 +0000

Optical scan machinesare reliable, as are touchscreens if you have a paper trail. Election reform not only needs to take place, it needs to be done right. Mercury News | 09/17/2003 | Recall could have silver lining if verifiable voting is a winner

By: Brett Bellmore

Brett Bellmore — Wed, 17 Sep 2003 20:59:37 +0000

Aphrael, on my cynical days I suspect that touch screen voting machines are popular with elections officals and incumbant politicians, precisely because of their frightening features. When ballot fraud occurs, who do you suppose is doing it? Joe Shmoe off the street? No, generally elections officials and politicians. And here they are, picking a system that makes recounts a joke, and ballot fraud indetectable if it happens. Go figure… BTW, ALL my days are cynical days. ;) My point about the touch screens is that it makes a hash of the notion that the election must be delayed until MORE RELIABLE machines are in place. That might be a reasonable rationale, if the replacements had been required to be more reliable…