In the final analysis, the US Supreme Court (SCOTUS) decision to effectively
stop the Florida hand recount, thereby giving the election to George Bush,
can only be seen as motivated by partisan concerns. This stark conclusion
is reached by the majority's failure to address the concern at the
heart of the decision: the problem of equal protection.
My argument starts with a specific point: that the problems of
"equal protection", that the five members of the SCOTUS cite,
would probably have been lessened by the Florida Supreme court's
However, there is a bigger general point that the SCOTUS completely ignores,
that being the meaning of "equal protection" when the true issue is how to
differentiate between defective votes (i.e.; punched chads that don't fall of)
versus non-votes (i.e.; chads that come loose in a random fashion). Therefore,
the fundamental concerns are of a technical nature, for which issues of equal
protection are irrelevant.
First off, the SCOTUS basically agreed that a hand recount was a legitimate
exercise, thereby agreeing with the gist of the Florida Supreme Court's
two rulings (to override the 7 day deadline, and to order a
statewide hand recount). The concern of the SCOTUS was the lack of
standards for doing this statewide hand recount, a concern which extended
to what ballots to count (undercounts only? undercounts and overcounts?)
as well to how to discern votes within a type of ballot (dimples vs. hanging
chads). For example, if one county uses a lenient standard, then the
voters in this county are more likely to have their votes counted then the
voters in counties with more "stringent" standards. Hence there is
a lack of equal protection.
The lack of equal protection can be summarized as a case where the probability
of having your vote counted depends on where you voted.
However, there are many ways that voters may suffer from such an
inqequality. In particular, the variation in voting technologies (from pencil
on paper ballots to punch card ballots) yields an order of magnitude difference
in the probability of uncounted ballots. The SCOTUS acknowledged this, but
skirted the issue by claiming that the hand recount was a statewide mandate,
hence should be held to more stringent constitutional concerns then the
pre-existing problems that occurred on a county by county basis.
The logic is a bit odd, but not necessarily wrong. That's until you
consider the other half of the story -- that the Florida Supreme Court's
(FL SC) action was an attempt (though perhaps not explicitily stated as such) to
correct an existing equal protection problem -- the problem (as recognized
by the SCOTUS) posed by the use of different technologies,
At the time of it's decision, it was too late for the FL SC to remedy this
large problem in it's entirety, but partial steps could be taken. In particular,
a particularly large and readily corrected source of error is the incidence
of undercounts. In addition, undercounts are shown to be strongly correlated
with the type of balloting technology used. Thus, counting the undercounts
will tend to enhance equal protection, it will equalize the probability of
a voter's ballot being counted regardless of the county of residence.
Acting cautiously, the FL SC punted on standards, and relied on existing
statute that let's the county's decide. In contrast to a state-wide standard,
this does not yield as much equal protection. However, under any standard
adopted by a county (within the broad guidelines set out by the Florida
legislature) there would be many votes that would always be counted.
Thus, given the goal of enhancing equal protection, the FL SC solution
was a partial remedy -- it reduced the inter-county differences in the
likelihood of a vote being counted. Although it could be improved upon,
it was better then ignoring all the remaining undercounts.
Thus, the SCOTUS discarded a partial solution in favor of an unattainable
superior solution. In the process, the worsened the situation that
motivated their concern; they increased the lack of equal protection.
But there is more!
Implicit in this notion of equal protection is the idea that everyone should
have the same chances for having their vote be counted. However, the real issue
is a technical one: how best to ascertain the information contained on a ballot.
For example, consider the
infamous punchcard ballots.
|Most of the ballots are easily
interpreted -- the proper number of holes are punched in sensible places. Machines
can even do the interpretation!
However, there are sufficiently large number of these ballots for which machine interpretation
is likely to be inaccurate. For example, when a chad is "hanging", or when it is "partially
detached", or when it is "depressed by without tears".
Each of these (and other) hard to interpret
conditions-of-the-ballot may be caused by one of two general causes:
The key point is that for equal protection to be meaningful, both of these causes
must be considered. The class of clumsy voters
who suffer from a vote that is not discernible
should be offered equal protection. Similarly, the class of non-voters who did not vote for
a candidate (presumably they had good reasons for this decision) should also be
offered equal protection.
- Clumsy voters. The voter, or the machinery used by the voter, failed to cleanly mark the ballot.
For example, the stylus failed to push the chad out off the punch card.
- Non-voter. The voter fully intended not to vote for any candidate.
However, due to
random forces, the ballot attains an appearance of being marked. For example,
due to defective paper, or to a card being bent or other wise abused, a chad
may partially detach.
So what is the county with a "lenient" standards really saying ...
In contrast, the county with a "stringent" standard is saying ...
So if the "lenient" county is offering more "protection" to clumsy voters, then the
"stringent" county is offering more "protection" to non-voters? Or is both county
using their best judgement, perhaps one based on the knowledge of their local balloting foibles,
to determine an accurate standard? A standard that will lead to a count closest to some
The latter interpretation is both clearer, and in keeping with the tradition of each
county choosing its voting technology. And let us not forget that when choosing a voting
technology, the costs and likelihood of hand-recounting are part of the decision.
It is entirely reasonable for a county to figure that this likelihood is so low, that
it is fiscally efficient to use a cheap and mildly inaccurate system (punch cards), even
though once in a great while you'll have to conduct an expensive hand recount.
In other words, variation in vote counting standards is fundamentally not an
issue that raises equal protection concerns. Perhaps, perhaps, partisan election
officials could adopt standards that will tend (a priori) to benefit their
favorite candidates. But that can be said of any election decision, ranging
from placement of polling places to the technical complexity of the polling mechanism.
Hence if you are going to closely focus on the equal protection consequences of
recount standards, then you had better do the same for the entire suite of
decisions that effect how an election is run.