> under the strictest standard, where only a cleanly punched ballot with a fully removed chad was counted, Gore won by three votes.[38] Under all other standards, Bush won, with Bush's margin increasing as looser standards were used. ... because of the possibility of mistakes, it is difficult to conclude that Gore was surely the winner under the strict standard ...
While in another analysis "Bush won under stricter standards and Gore won under looser standards"
And there are also the "spoiled ballots" where "people had punched and written in a candidate’s name", eg, for people who would "check Gore and write Gore". These were rejected, even though the voter's intent was clear. "The Washington Post found that Gore’s name was punched on 46,000 of the over-vote ballots it, while Bush’s name was marked on only 17,000"
But with all the attention on hanging chad, we didn't hear about that last issue. (I didn't until I read it just now!)
Very interesting. My own thoughts on this are that we should not be trying to determine intent on improperly filled ballots. In the same way that I'm responsible for getting myself to the voting booth, I am responsible for filling out my ballot properly. If I fail at that, my vote won't be registered. Where ballots aren't sufficiently clear to voters, they should be made so.
Where ballots aren't sufficiently clear to voters, they should be made so.
Well there's the problem. What do you do when you have ballots that are objectively unclear, like the infamous butterfly ballot? You can't invalidate the election and have a new one--apart from the logistical problems, the turnout is going to differ significantly based on the media attention and the knowledge that the cancelled ballots were so close.
The best option you have is to mandate judicial review of ballots well before the election. But even that doesn't save you in the situation Florida actually found itself in.
"objectively unclear, like the infamous butterfly ballot"
I saw a reproduction of this ballot in the newspaper at the time and I remember wondering what the problem was supposed to be. It seemed perfectly clear, but journalists were jumping on the bandwagon of calling it confusing.
Analysts believe a minimum of 4,000 people accidentally voted for Pat Robertson (in a heavily Jewish, not heavily conservative area, the anti-Semite Robertson got far more votes than polls or expectations). 10,000 ballots were invalidated from double-punching Gore and Robertson. It was a major UI failure.
There's nothing that you can do about the butterfly ballots after the fact short of re-running the election, which is out of the question as you state.
Well, at oral argument, Scalia made it clear that only legal votes should be counted. To be honest, since the question was "what is a legal vote?" that seemed like circular reasoning. The underlying idea, though, is that if I walk into a polling place, and proudly yell my vote, and walk out, my vote isn't counted regardless of how clear the intent was.
Scalia's suggestion was that if a vote couldn't be read by a machine, it wasn't a legitimate vote regardless of any extenuating details. That may have been influenced by the fact that Florida law only mentioned recounts that were performed by running the ballots through the machines a second time.
I'd say a legal vote is one that is filled out in accordance with the instructions on a legal ballot. From what you're saying, I suspect that's what Scalia meant. If the machine misreads such properly filled-out ballots, that is certainly a problem and a recount would be justified.
No: a legal vote is as defined by Florida election law. As I remember (quite possibly fallaciously) that law held that a vote was to be counted if the intent was clear.
And, contrary to what reporters said, that standard actually wasn't from the section dealing with recounts. It was the standard to be used if a bunch of ballots were damaged before they could be counted by machine; say, in a car accident.
Florida law at the time only mentioned recounts in the context an automatic recount that involved putting the ballots back through the same machines a second time.
Gore's legal team asked for hand recounts, and suggested the "clear intent of the voter" standard. Scalia asked whether the standard should be "can be read by a machine," given that Florida statutes only mentioned recounts that involved machines.
If you still disagree, how would you answer my earlier question: I walk into a polling place, announce my name, clearly yell who I want to vote for, and leave. My intent is clear, should my vote count?
What if I were to mail in a ballot, that wasn't postmarked? My intent was clear, but Gore requested that such ballots not be counted. What does the postmark have to do with intent? Or is intent a necessary, but not sufficient, element?
For the record, the last time I filled out a paper ballot (Calinornia, late '90s), they handed me a special marker and told me to use it, or my vote would not count (they also told me not to mark two spots for the same office, or my vote would not count).
I agree that there should be strict, well-defined standards for which votes count, and the examples you mention shouldn't count.
However, "is readable by a machine" is not a well-defined standard, and is IMO way too strict; it's more than likely that a panel of human readers would all agree on which name is written on a ballot, without it being readable by a machine.
I'm not saying it's a good standard. I am saying that it's a standard that Scalia proposed, and I will concede that it sidesteps a few complications.
But it's also not as rigorous as it should be. Two machines may disagree on how readable a particular ballot is, even if both machines are operating within specified tolerances.
