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.
