Rise of the Machines -- David Boies

From: Alan Dechert <alan_at_openvotingconsortium_dot_org>
Date: Sat Oct 30 2004 - 14:12:54 CDT

Okay, we weren't able to clean up the mess we saw in 2000. Let's make sure
we don't see editorials like this 4 years from now!

October 26, 2004
Rise of the Machines

rmonk, N.Y.

The 2000 election left many voters feeling disenfranchised, frustrated
millions more and tarnished the image of American democracy at home and
abroad. The United States Supreme Court's decision to intervene (for the
first time in history) in a presidential election, ordering Florida election
officials to stop counting votes and effectively determining the winner,
troubled legal scholars and average citizens alike.

No one wants a repeat of 2000 this year. Unfortunately, many of the same
conditions that led to the events of 2000 are present today - a close
election, the likelihood that Florida will prove decisive, partisan election
officials trying to use the power of their office to help their party, and
armies of lawyers poised to plead their candidate's claims in court.

One way of avoiding a repeat of 2000 is beyond our control: we cannot know
whether the margin of victory this year will be larger than the number of
disputed ballots. Another way is unrealistic: we cannot expect that no one
will try to break or bend the rules for partisan advantage.

There are, however, some hopeful signs. Election officials are working to
avoid debacles like the confusing "butterfly ballot" of 2000. And because of
a law passed by Congress in 2002, voters who show up at the polls and are
told they are not eligible to vote must now be given a provisional ballot,
with officials determining their eligibility afterward. If this law had been
in effect in 2000, thousands of eligible voters improperly struck from the
rolls would have been able to vote.

But we can do more. First, officials should fix (and publicly declare) the
rules before Election Day - when it is less certain who will benefit. Issues
like whether a person voting by provisional ballot must vote in his home
precinct, whether faxed absentee ballots will be accepted, whether manual
recounts will be permitted and how many days will be allowed for the receipt
of absentee ballots should be determined now.

Second, any disputes over what election officials are doing or planning need
to be resolved now, again before Election Day. In 2000, thousands of
eligible (mostly African-American) voters were struck from the rolls at the
behest of Katherine Harris, then Florida's secretary of state, because their
names were similar to those of convicted felons, who are ineligible to vote
in that state. This year a comparable plan by Ms. Harris's successor was
blocked. An effort in Ohio to invalidate new registrations based on the
weight of the paper that voters used to register was likewise blocked.

Third, any problems on Election Day itself must be detected and dealt with
before the polls close. In most elections, abuses on Election Day could lead
to a new election. However, since selection of presidential electors must,
under the Constitution, be done on the same day in every state, and since it
is unrealistic to expect all 50 states and Congress (which under the
Constitution must select the day) to agree to a "do-over," a new
presidential election is not practical. Consequently, if voters are
intimidated or prevented from getting to the polls on Election Day (as
happened to African-American voters in some northern Florida counties in
2000), their votes are lost forever.

It is too late, unfortunately, to take one important step toward avoiding a
repeat of 2000 this year. If anyone took Bush v. Gore seriously as legal
precedent, uniform voting machines in each state would be constitutionally

As the dissenting opinion in Bush v. Gore emphasized, voting machines are
much more likely to affect the chances of whether a vote is counted
correctly than the different standards used to assess ballots by local
officials. Optical-character-recognition voting machines that include a
paper trail, and which warn voters of overvotes or undervotes so they can be
corrected, have been in operation for years in several counties in Florida
and elsewhere. They have been recommended by both Republicans and
Democrats - including the bipartisan commission appointed by Gov. Jeb Bush
of Florida after the 2000 election.

Thus Florida's recent installation of less reliable alternative devices that
lack a paper trail, many in heavily Democratic counties, is
incomprehensible. O.C.R. machines cost a little more, but the difference is
trivial compared to the billions being spent for elections in Iraq or even
the millions spent by the state of Florida to ensure that felons (and those
with similar names) are not eligible to vote. Whether the uniform use of
these machines is constitutionally required or not, their extra cost is a
small price to pay for making democracy more effective at home.

David Boies, author of "Courting Justice," represented Al Gore before the
Supreme Court in 2000.
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Received on Mon Nov 1 15:28:56 2004

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