Today, in Roll Call, two views are set out about the nature of the problem and the contours of a solution in Florida’s Thirteenth District.

    The editors take the election to be representative of the unsettled and unsatisfactory state overall of election administration.  They see a “warning” here; they call for the warning to taken seriously, and for action to be taken, prior to 2008.  "A Warning in Florida," Roll Call (Dec. 6, 2006).

     Rick Hasen agrees that election administrative practices, in Florida and elsewhere, remain unacceptably substandard but, judging the problems in the Thirteenth to have been more likely caused by ballot design than by machine malfunction, he assumes that the state legal process cannot deliver a resolution but that the House of Representatives can and should.    In supplying this resolution, Hasen argues, the House will sound the right warning: “A side benefit will be that the controversy will focus attention on problems with election administration, and get Congress and the country thinking more about the problems with how we administer our elections.”  Richard L. Hasen, "It’s Time for the House to Pick Up the Pieces in Florida’s 13th District," Roll Call (Dec. 6, 2006).

     In both views there is the just measure of attention, with Florida once again as a leading indicator, to the inadequacy of current administration.  But in Hasen’s case, there is also a rush to judgment, an early reading of the nature of the Florida Thirteen problem before the litigation is barely underway.  There is a warning here, too:  that our patience with election disputes is quick to run out, allowing political to replace legal argument.  In Florida, a serious claim of machine malfunction has been made.  It must be heard, not prejudged. 

     Journalists, observers and scholars, sifting the facts as they choose, collect and weigh them, and may well have some rough opinions to offer, and yet the case—heard and decided on evidence tested in a court of law—has not to date been presented.  Because it is a case of exceptional importance, which may influence how other such questions about voting technology are resolved elsewhere in the nation, it is no small mistake at this stage to embrace one explanation or the other.  The high level of unease about the quality of much of the machinery in use—paperless electronic devices in particular—would suggest that every effort must be made to test the claims about iVotronic machines voted on Election Day in Sarasota.

     Hasen argues that “based on the evidence available thus far, the most likely culprit appears to be poor ballot design.”  The evidence he cites are a newspaper review and an academic study.  In the meantime, the discovery stage in the case has yet to begin; other than the state-conducted parallel-testing, an inherently limited procedure vulnerable to flaws in design and execution, the plaintiffs have had no opportunity through access to testing of their own, much less through access to the hardware and software, to put their claim of machine malfunction to the test. 

     And it is not a claim yanked from thin air.  Hundreds of voters experienced and reported problems with the functioning of machines; and these reports were verified by the observation of poll watchers and recorded contemporaneously in incident reports.  Moreover, there is more than enough reason to doubt that ballot design is primarily to blame.  Hasen, for example, cites the 2000 “butterfly ballot” case in Palm Beach; but as the Jennings contest papers note:

Even the most egregious examples of voter confusion caused by ballot design in other races do not yield undervote percentages remotely as high as those present in the Thirteenth District congressional race. For example, the infamous “butterfly ballot” used in Palm Beach County, Florida in the 2000 presidential race caused fewer than 1% of the presidential votes cast in that election to be erroneously cast for the independent candidate Pat Buchanan.

     On the kind of evidence to which Hasen refers—the reported experience with the effect of ballot design—ballot design is considerably less likely than machine malfunction to account for the undervote.  There are other weaknesses in the argument for ballot design but of all of them, the most profound is its incompleteness, fashioned as it has been from incomplete, variously selected bits of fact in a legal controversy only recently brought before a court.

     If the question of the cause is still in search of an answer, then there is no reason to look, as Hasen is tempted to do, for a “political” rather than a legal remedy.  The legal problems raised in Sarasota are serious enough, and while these may be complex—and while it is never convenient or comfortable to have elections disputed or for the arguments to run into the holidays—we should expect no less than a thorough examination in the legal process. 

Bob Bauer       

[Note: as previously stated in other postings on this topic, the firm associated with this site represents clients actively supporting the Jennings Congressional campaign and the lawsuit now in progress to contest the results.]