Yale Law Students CAMPAIGN FOR A LEGAL ELECTION
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FLORIDA GOP FILED 1997 SUIT TO FORCE NEW ELECTION OVER RECOUNT
By Nathan Newman & the Yale Law School
Campaign for a Legal Election
Few people are probably under any illusion that the Republicans in Florida would be singing the same tune on their aversion to court challenges if the situation of Gore and Bush were reversed. But if you have any doubt, it turns out that the Florida Republican Party filed suit in 1997 to force a new election because they did not like the results of an election recount.
This case involved a 1996 Polk County Commissioner race where the GOP candidate led in the initial machine count of ballots, but after the Democratic incumbent protested and forced a hand count, the recount revealed that the Democrat had won. The Florida Republican Party refused to accept the results and filed suit to force a new election. Filing the suit, Paul Senft, chairman of Polk's Republican Party, argued that "literally thousands" of people were not sure their votes were counted properly and a new election was necessary. While trial courts have ordered new elections in the past in Florida, this suit failed on the technical grounds that the GOP missed a filing deadline.
And the GOP's willingness to go to court to overrule local election officials is not limited to local Florida elective offices. Back in 1992, Congressional Republican candidate Bill Tolley of Florida went to court to force Brevard County officials to conduct a hand count in his race with Rep. Jim Bacchus (D). So it is ironic that George W. Bush is now going into federal court to try to block hand recounts that GOP Congressional candidates have in the past gone to court to promote.
The hypocrisy of the Republicans in the present Presidential controversy is clear. In past close elections, the GOP has been quite willing to go to court to force recounts and even ask for new elections, yet today they suddenly make a principle of accepting the first machine count a new gospel.
More deeply, it is worth remembering that the Florida laws promoting the hand counting of ballots in cases of dispute flow from a long history of skepticism about the reliability of machine counts. Current regulations were passed in the wake of accusations that the machine count stole the election from the Democratic candidate for the US Senate back in 1988.
Exit polls that year showed Democrat Buddy McKay beating Republican Connie Mack, yet the machine count handed the election to Mack. Suspiciously almost 200,000 more people voted for President than for the U.S. Senate. The result was attributed to computer programming errors and to the now-famous underpunched "chad" clinging to ballots. The problem back then was that hand counts were allowed only in cases of fraud, but legislation passed after the McKay-Mack race created the new procedures for hand counts and other remedies to assure a fair count.
Let's be clear: the GOP's pursuit of legal remedies in the past was the correct position, since part of our constitutional process is the right to legal redress through the courts. Given the importance of the Voting Rights Act and state law equivalents, the current emotional assaults on the right to seek court protection of the sanctity of the voting process is misguided and dangerous.
But given the Republican's past use of those legal protections, the Bush campaign's current rhetoric is deeply opportunistic and hypocritical. They should tone down their rhetoric and accept the process, including voting rights court challenges, however slow it may be at times. Any dictatorship can have a quick election count; it takes a strong democracy to make the legal voting rights of the individual a higher priority than speed.
Attached are a few sections of newspaper articles dealing with the controversies detailed in this post.
THE LEDGER (LAKELAND, FL) April 16, 1997.
BARTOW -- Just when you thought the contest between County Commissioner Marlene Young and Bruce Parker was over, the Republican Party is suing.
The suit asks that Parker, a Republican, be returned to the commission seat he held for four months before a lengthy hand recount of ballots ended with Young, a Democrat, being declared the winner by a Sarasota circuit court judge.
If Parker isn't returned to office, the seat should be vacant, the suit contends.
The suit was filed in Circuit Court in Polk County on Monday by Paul Senft, chairman of the Polk County Republican Party; Donna Coggeshall of Auburndale, a voter who lives in Young's district; and the Republican Party of Florida. It names Young and the Polk County Elections Canvassing Board as defendants.
Senft said Tuesday there are "literally thousands" of people who question whether their votes were counted properly.
Young on Tuesday called the suit frivolous, ridiculous and "a desperate attempt to recover the seat. The public is sick and tired of this. It's absurd. The longer this controversy swirls, the worse it gets."
Parker won two machine counts of the ballots and was declared the 19-vote winner in November by the Canvassing Board. After Young filed a court protest and a hand recount was conducted, she won the election by 18 votes.
In the certified machine count, 143,949 votes were tallied in the Young-Parker race. In the court-ordered hand recount, 144,198 votes were counted.
Polk Supervisor of Elections Helen Gienau says the 249-vote difference was caused by instances in which voters didn't blacken the oval on ballots but instead circled a candidate's name or party. Those so-called resolution ballots, in which officials made a determination about a voter's intent, weren't counted by machine.
The lawsuit questions whether decisions on which resolution ballots to count were made correctly and impartially.
Some of the 249 ballots may be "votes illegally marked after the first two machine counts," the suit says. "Many employees of county officials on the ballot in the Nov. 5 election, including employees under the control of defendant Marlene Young, were used by the Polk County Supervisor of Elections to administer the election and had access to and were allowed to handle ballots."
The suit doesn't offer evidence of fraud but says the 249 additional votes in the hand recount "compels three possible conclusions:"
"The hand count is correct and Polk County voting machines are unreliable."
"There are no hard and fast rules in Polk County elections as to (how) voter intent is determined in regard to paper ballots and those rules were manipulated by the Canvassing Board or the special master."
"The hand count by the special master was corrupted by irregularities that somehow produced 'new' votes after the two machine counts."
The special master who supervised the recount, attorney Sam Goren, was unavailable for comment Tuesday.
Young said the lawsuit was correct only in its first supposition -- the unreliability of the machines. "The hand count did what the machines never did, which was account for every ballot cast," she said.
Parker said he is not a part of the suit. He wouldn't say whether he would support it or not, only that he hadn't yet read it.
"It's not a matter of being brought back into the fray or not, I'm already in the fray," Parker said.
When he accepted the judge's ruling that returned Young to the commission, he said, it didn't mean that he was conceding the election. "What I was trying to do was heal wounds, put things back together," Parker said.
County Judge Michael Raiden, a member of the Canvassing Board, declined comment on the specifics of the suit, but said he wasn't surprised by it, "because nothing surprises me anymore about this election."
"My first reaction," he said, "is to demand a recount of my own election in 1994."
He said the Canvassing Board will meet "in the sunshine" and decide whether to hire an attorney to defend itself.
The other two members of the Canvassing Board, County Commissioners Jerry Carter and Nancy Hedrick, declined comment.
Although the Elections Office wasn't named as a defendant in the suit, Gienau bristled at some of the allegations.
The suit describes elections in Polk County as being historically tainted, with electioneering by poll workers, peculiar voting patterns and unusually large majorities for favored candidates.
The recount was under the closest scrutiny possible, Gienau said, "with the ballots under lock and key and the surveillance camera on at all times. And a reporter from The Ledger was here all the time, as were representatives of both candidates.
"To say that the ballots were tampered with is ludicrous."
The lawsuit was assigned to Circuit Judge Randall McDonald, but his judicial assistant, Pam Morris, was filling out papers Tuesday for McDonald to withdraw. Chief Circuit Judge Charles Davis, as he did in Young's earlier court protest of the results, is expected to find a judge from outside the 10th Judicial Circuit to hear the case because Young's husband, Robert, is a circuit judge here.
ROLL CALL, November 12, 1992 And in Florida, Republican Bill Tolley won a partial victory in his court plea for a recount of his race with Rep. Jim Bacchus (D). Bacchus appears to have won the race, 51 to 49 percent, with a margin of almost 3,500 votes. Tolley led the race for much of the evening before the results from Brevard County were recorded.
Tolley filed a suit against the election board last week charging irregularities at several polling places, and on Monday, Brevard County Circuit Court Judge Edward Jackson ordered two randomly selected precincts to recount their votes by hand and compare them to the number of voters who signed in and the computer returns. The recounts will begin today.
Jackson stressed that he saw no cause for fraud, but the Federal Bureau of Investigation also got into the act Tuesday after a complaint that alleged conspiracy to tamper with ballots. The Justice Department would not reveal who filed the complaint.
LOS ANGELES TIMES, July 3, 1989 When Democrat Buddy MacKay narrowly lost a U.S. Senate seat to Republican Connie Mack in Florida last November, the credibility of computerized vote-counting took a beating.
Mack won by 34,518 votes out of more than 4 million cast in an election in which there were puzzling differences between the total vote for President and for U.S. Senate.
In four populous counties where MacKay was thought to be ahead -- Dade (Miami), Hillsborough (Tampa), Palm Beach and Sarasota -- almost 200,000 more people voted for President than for the U.S. Senate.
All four counties have the same "Votomatic" punch-card tabulation system used by many California counties, including Los Angeles.
In those four counties more people voted in such races as state treasurer and secretary of state than in the U.S. Senate race, even though the Mack-MacKay contest was a bitter, well-publicized contest.
"That's peculiar," veteran elections analyst Richard Scammon observed.
"Something strange happened there," said Robert W. Flaherty, executive director of News Election Service, a national vote-reporting service owned by the three major television networks and the Associated Press and United Press International wire services.
Flaherty's service projected MacKay the winner, as did both ABC and CBS.
MacKay and his campaign advisers agreed that "something strange" had happened.
"Our late polls showed us with a 5% to 9% lead," MacKay said in a telephone interview from his Miami law office. "We knew that would be cut some because (Democratic presidential candidate Michael) Dukakis was sinking into a black hole in Florida, but we thought we had enough of a cushion to win and I think we did have."
MacKay's advisers wanted to challenge the results in five counties, adding Broward County (Ft. Lauderdale) to the other four.
However, Florida law leaves recount decisions in the hands of local canvassing boards, which generally approve a new tally only when there is a claim of fraud.
"It's a real Catch-22 situation," MacKay said. "You've got to show fraud to get a manual recount, but without a manual recount you can't prove fraud."
Even when a recount is ordered in a computerized election in Florida, it is usually done on the same system that produced the first results, which one critic said is "like singing the same song twice."
Of the five counties where MacKay sought a recount, only Palm Beach County agreed. There, a manual check of 10 precincts produced almost the same result as the computerized tally, causing the Democratic candidate to drop his protest in that county.
"It was a helluva way to have your political career end, I can tell you," MacKay said.
In the aftermath, supervisors of elections in the affected counties concluded that a ballot placement problem led to the sharp vote drop-off.
Confusing Ballot
In several counties the Mack-MacKay race was listed at the bottom of the ballot's first page, below all of the presidential candidates, including minor Libertarian and New Alliance Party candidates.
"A lot of people simply missed the race," said David C. Leahy, supervisor of elections in Dade County. "They figured the whole first page was for presidential candidates, so they voted their choice and then flipped the page without ever seeing the Senate race."
But if that was the reason, there should have been a sharp drop-off in all counties where the Mack-MacKay race appeared on the same page as the presidential candidates.
The ballot layout was almost the same in Pinellas County (St. Petersburg) as it was in Hillsborough County across the bay, yet the drop-off in votes between President and Senate was less than 1% in Pinellas, while in Hillsborough it was 25%.
Discrepancies of this kind have led many observers to speculate that computer programming errors, accidental or intentional, were at least partly responsible for the outcome.
"I think somebody made a mistake in programming," said Robert J. Naegele, who has been California's chief consultant on computerized vote-counting for more than 20 years.
In the aftermath of the Mack-MacKay contest, legislation has been introduced to strengthen Florida law by requiring state certification of vote-counting systems, providing for manual recounts of at least 1% of the votes and requiring that "source codes," the heart of the vote tabulation programs, be deposited with the secretary of state so they can be checked in case of disputed results.
(California already requires state certification, as well as a 1% manual recount, and two bills calling for source codes to be deposited with impartial "escrow agents" are pending in the Legislature.)
The U.S. Senate race in Florida was the latest in a series of flawed elections in which the results were tabulated electronically.
In a report published last year, Roy G. Saltman of the Federal Institute for Computer Sciences and Technology listed numerous recent instances of mistakes in computerized vote counting. In one of these -- the 1985 Dallas mayoral election -- incumbent Starke Taylor narrowly avoided a runoff in a contest that had several peculiar features.
When the vote-counting computer experienced a power failure on election night, Max Goldblatt, one of Taylor's opponents, was leading, but when the power came back on, Taylor had mysteriously moved ahead.
When a machine recount was ordered, only 89 out of 250 precincts showed the same totals. Even stranger, in 109 of the 250 precincts, the total number of counted ballots changed between the original tally and the recount.
When the official canvass for this election was published, it contained three different vote totals, evidently because the computer did not correctly tabulate 11 "split precincts" in which some voters lived within the Dallas city limits but others did not.
Legislative efforts to investigate these mysteries were thwarted because the ballots and other documents had been destroyed.
Federal law requires that ballots and other materials be retained for 22 months after an election for President, the U.S. Senate or the House of Representatives, but state laws governing local races vary widely. California law requires that the material be kept for six months after the official result is announced (longer if there is a dispute) but no such requirement covered the 1985 Dallas mayor's race.
Eventually, the Texas Legislature passed a law mandating, among other things, the certification and testing of vote tabulation systems, manual 1% recounts, clear "audit trails" that can be followed to check disputed results and the deposit of vote-counting source codes with the secretary of state.
Other Examples
The Saltman report included these other examples of problem elections:
* In Gwinnett County, Ga., in 1986, the results of a state Senate race were overturned because of tabulation errors resulting from "handling procedures, the ballot puncher, the vote counter, the punched cards' density, vote position on the ballot card, human error and pure chance," Saltman wrote.
* In Moline, Ill., a losing candidate for alderman was declared the winner after it was discovered that a malfunctioning timing belt in a card-reading machine had deprived him of 92 votes.
* In Oklahoma County, Okla., in 1986, some machines failed to count up to 10% of the ballots per precinct.
* In Stark County, Ohio, a recount of a close race for county commissioner produced 165 votes more than the original tally and a different winner. But this result was reversed again when it was discovered that the program used in the recount failed to distinguish between voters of different political parties.
Saltman concluded that most of these problems were because of human error, not fraud or computer malfunctions, but that is small comfort to citizens whose votes have been invalidated.
"Most problems attributed to the computer system are simply human errors, not software or hardware errors," Lance J. Hoffman, professor of electrical engineering and computer sciences at George Washington University, wrote in a separate report published in 1987. "Although fraud was not involved . . . the effect was the same: Ballots were improperly tallied."
A common source of error in any punch-card tabulation system is "chad" -- small pieces of ballot paper that sometimes cling to the underside of the ballot card after the ballot has been punched.
As ballots are handled when they arrive at counting centers, or as they move through the card readers, a piece of chad is sometimes pressed back into the ballot from which it came, or into the next ballot in the deck. When this happens, the card reading machines register no vote for that race.
A second problem is caused when pieces of chad pop out as ballots are being handled by the many people who wrap, sort and inspect the cards before they are counted. This can mean that two votes are shown for the same race, and that kind of "over-voting" causes the computer to invalidate the vote for that candidate.
Chad also can cause the card readers to jam.
Ralph C. Heikkila, assistant registrar-recorder for Los Angeles County, said that only 1% to 2% of votes cast at the polls have chad problems but that about half of the absentee ballots do. That means almost 200,000 ballots cast in the November, 1988, election, could have been affected.
An especially disconcerting aspect of the chad problem is that no two counts of the same election are likely to be the same, which reduces voter confidence in the outcome.
Poorly prepared ballot pages or ballot holders can result in votes being cast for the wrong candidate or issue in a punch-card election. Because Los Angeles County assembles about 45,000 ballot holders for a major election, there are many opportunities for mistakes of this kind.
Experts' Opinion
Votomatic and other punch-card systems present so many potential problems that some experts have recommended that they be abandoned.
"There is no circumstance under which I would conduct an election with punch cards," said Michael Shamos, who is one of three computer experts who certify electronic vote tabulation systems for the state of Pennsylvania. "I would much rather hold a town meeting and have people raise their hands -- I'd get a much more accurate tally."
But Heikkila disagreed. "Basically, the computer systems are all good, if people know the procedures and follow them," he said.
Some errors are caused by rushing to produce results, to meet the demands of the press and of candidates and their supporters.
"They (election officials) are terribly afraid of the media," federal computer expert Saltman said. "They're afraid they'll be criticized if the results come out slowly and sometimes that causes mistakes."
But Naegele, the California consultant, said, "The longer you wait to get the answer out, the more suspect the answer is."
Saltman has made several recommendations to improve electronic vote tabulation and to build public confidence in these systems.
'Hanging Chad'
He proposed that the prescored punch cards used in the Votomatic, the most widely used vote-counting system in the country, be eliminated because of the "hanging chad" problem.
Saltman also stressed the need for complete audit trails -- records of what is happening inside the computer at all times -- that can be consulted later if results are challenged.
Saltman recommended better election management and tighter "internal controls" -- hiring professional internal auditors who can provide election officials, most of whom are not computer specialists, with as much assurance as possible that the systems are working right.
State certification of vote-counting systems also should increase the probability of accurate results.
California and some other states already do such testing, subjecting the hardware to rough handling and to fluctuation in temperature and humidity. The vote-counting software programs are also tested, to make sure they are written in understandable computer language that could be read by others if disputes should arise.
But many states have superficial certification procedures or none at all.
This could change if states adopt the voluntary standards for computerized elections that are about to be issued by the Federal Election Commission. One of these standards calls for new vote tabulation systems to be tested by one of half a dozen or so "independent testing authorities."
Careful "logic and accuracy" testing before and after each election also should improve the reliability of results.
Other Testing Methods
"Logic" testing determines if the machine is reading the various ballot styles correctly (in a large election jurisdiction there can be hundreds of different ballot styles, as voters are divided into congressional districts, school districts and other subgroups).
"Accuracy" testing should reveal whether the card reading machines, through which the ballots pass at blinding speeds, are functioning properly.
But many election officials "don't understand what they are testing for and don't know what to do about a problem when one arises," Naegele said. "Operating entirely out of ignorance, they see mistakes but do nothing about them. . . . In that case, you might as well not bother testing at all."
In the end, American elections will probably never produce precise results because they are so decentralized.
That is what the U.S. Constitution intends, granting, as it does, control over elections to the states, which pass most of the authority on to cities, counties and other election jurisdictions.
Unlike most Western democracies, the United States does not attempt a single, official count in presidential elections. The result, said I. A. Lewis, director of the Los Angeles Times Poll, is that a national election "is only the best approximation of what actually happened."
But the country muddles along -- with some excellent, scrupulously honest election officials and some who are incompetent, poorly trained and occasionally dishonest; with vote-counting equipment that sometimes works and sometimes does not; with only partially successful efforts to improve the equipment and reform the system.