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12 Mar 2004 01:44:48 Daniel H.

Subject: Politics    
Equal Protection and the 2000 Election

Rank partisanship by SCOTUS in the 2000 election.
It's old news now, but I haven't seen my main point broached elsewhere. So let's revisit the 2000 Elections.
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 plan.

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:

  1. 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.
  2. 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.
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.

So what is the county with a "lenient" standards really saying ...

  • that it is more likely that a hard-to-interpret ballot (say, one with a partially hanging chad) represents a legitimate vote cast by a clumsy voter
  • In contrast, the county with a "stringent" standard is saying ...
  • that it is more likely that a hard-to-interpret ballot (say, one with a partially hanging chad) represents a randomly damaged ballot handed in by a non-voter
  • 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 underlying truth.

    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.

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