Thursday, November 20, 2008

How Neutral Are You?

The Minnesota Senate recount just keeps getting more interesting. After two days of hand counting, with 46% of the votes recounted, Coleman's lead is down to 136 votes.

Now, if one naively assumed that Franken would continue to pick up votes at the same rate for the remainder of the recount, he'll end up losing. Coleman started out ahead by 215, so recounting 46% netted Franken 215-136 = 79 votes. Therefore, one would naively expect the rest of the recount to net him 54/46*79 = about 93 votes, which would still leave him down by 43. (That's out of 2.8 million!)

Of course, the rate of change does not have to be constant, and a lot depends on which counties are left to go. So the above calculation could be misleading.

But what's really interesting are the questions that the recount raises. For a fascinating insight into what the counters have to decide, see here. Courtesy of Minnesota Public Radio, the linked page presents pictures of actual, challenged ballots, with the question that each ballot raises. Take a minute and see if you can decide whether each ballot should count for Coleman, Franken, someone else, or not at all.

Not so easy, is it? I thought most of the challenged ballots had pretty clear answers, but some definitely present close, judgment calls. The Minnesota law requires ballots to be judged by the "intent of the voter" standard. It's not so hard to judge the voter who started to fill in the oval for Coleman, then wrote "NO" next to it and filled in the oval for Franken. That's a Franken vote. The voter who filled in the oval for Franken but had a small dot in the Dean Barkley oval is an even clearer Franken vote. But what about the voter who filled in the oval for Coleman, but also put an "X" through the oval, and didn't fill in anything else? I'm giving that one to Coleman, but it's a closer call. And how about the voter who put an "X" in the Coleman oval and wrote "Bachman" in the write-in line? I would reject that ballot altogether. Perhaps the closest call is the voter who voted for Coleman but also put what appears to be a signature on the ballot. Minnesota law voids a ballot if it is "is marked by distinguishing characteristics in a manner making it evident that the voter intended to identify the ballot." The mark on this ballot is illegible, but it looks so much like a signature to me that I would disqualify it. Tough call, though.

It's got to be a tough job for the recounters. It happens that I've met Mark Ritchie, Minnesota's Secretary of State, and had some discussions with him about election law issues (about a year ago, not related to any of the current recount issues). My impression of him is that he's very committed to honesty and integrity in elections, and although he was elected to office in a partisan election (he's a Democrat), I would trust him to pursue the goal of a 100% honest, fair, neutral recount. But can the same be said of every single person who's actually involved in counting? I have no idea. And even more to the point, even assuming every counter is committed to a fair, honest, neutral recount, is it really humanly possible not to be swayed by some degree of (possibly unconscious) bias in making the close, judgment calls that the ballots actually present? That's a harder question still.

I am also put in mind of something Justice O'Connor said in the oral argument in the infamous case of Bush v. Gore. Discussing the standard for counting the votes, she asked, "Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes?"

The pictured Minnesota ballots show how utterly naive and inappropriate that suggestion was. When you have millions of people, some careless, some in a hurry, some not well educated, some who don't speak English as a native language, some just not so bright, all doing something that they only do once every couple of years, they are going to make some mistakes. It's absurd to imagine otherwise. It's appropriate for the law to preserve the right to vote by taking these mistakes into account and permitting votes to count if the intent of the voter can be reasonably discerned.

And by the way, the other thing that's always struck me about that O'Connor quote is that she really meant to say "for goodness' sake," not "for goodness sakes." I guess she doesn't know how to follow instructions.


Anonymous said...

Professor - This is an interesting exercise but I must say it is quite over-simplified. I understand that most "recounters," upon encounring an equivocal mark, look at the marks on the REST OF THE BALLOT in order to determine whether or not the voter uses the same equivocal mark throughout the ballot, or if it is unique to a particular race. This sheds much light as to what his intent might (or might not) be.

Although the exercise is interesting, it is not sufficient to make a legitimate determination as to the intent of the voter.

Anonymous said...

Ballot verification at the time of voting would easily eliminate nearly all of these questions.

The ballot machine should print a sheet for the voter, showing whom or what he or she voted for, did not vote for, if they voted more than once for the same office or issue, and if there are any identifying or disqualifying marks.

The voter could see exactly how they voted, and request a new ballot if there were discrepancies.

For the ballot to count, the voter would be required accept or reject the machine's reading of the ballot.

If the voter agrees with the printout, they verify the vote, and the ballot is identified with a validation mark (something like the IBM punch card verifiers did back in earlier days of computer programming), and the ballot becomes unchallengeable.

Most 'fill in the oval' machines now check the ballot and query the votor whether they accept or reject any over or under votes.

But, they make no printout with bold red lettering for under or over votes to alert the voter where they have potential errors.

Why not? Such a printout would make a better souvenir than a little 'I Voted Today' sticker, too, if the voter chose to keep it.

Such a system would have worked fine even with the Florida punch card ballots - newer machines were never the solution to 'correcting' accidental or intentional misvotes.