Has Florida Come to Maryland

When I went to vote on Sept. 12 at Walter Johnson High School in Bethesda, the computer accessing my voter registration crashed.  Then, I was moved to the next station, the computerized database indicated I had already voted—probably the result of the first attempt to access my registration.

It could have been worse.  Fortunately, because at least one of the election officials had witnessed the fiasco, they allowed me to vote, and I proceeded to cast a ballot—for myself.

Yes, I was a candidate for the House of Delegates from district 16, and so had a more vested interest than most in the proceedings.  However, it was not my candidacy but a different experience—my work as a lawyer during the disputed presidential election of 2000 in Florida—that gave the occasion a feeling of eerie familiarity.

I was the lead counsel in the “butterfly ballot” case of Julius Katz, et al. vs. Florida Elections Canvassing Board et al., which was decided by the Florida Supreme Court in 2000.  After that election, many states, wanting to respond to the public’s concern about accurate counting of votes, jumped on the bandwagon for election reform.

The Florida travesty had elevated public awareness of what had been going on for years in many states:  namely, that many ballots had not been counted and were disregarded.  In Palm Beach County alone, more than 19,000 ballots were thrown out in 2000, a sixfold increase over 1996, because there were 10 presidential candidates on the ballot with one single line of punch options down the center (with misalignments).

This was clearly enough to affect the entire state outcome, the Electoral College count and, thus, the entire national election.  We know this because s statistical analysis by many media outlets, including a Washington Post study of 8,000 of the votes thrown out in Palm Beach County, revealed a 10-1 margin for Senate candidate Bill Nelson, a Democrat.  These voters could not realistically have been expected to vote disproportionately for George W. Bush.

In Beckstrom vs. Volusia County, the Florida Supreme Court ruled in March 1998 that an election can be voided if there is “substantial noncompliance” with election law and a “reasonable doubt” as to whether certified election results accurately reflect the “will of the voters.”

In other words, the state must count every vote.  In Beckstrom, the court was confronted with how much “incompetence, negligence or error” reaches an “intolerable” level.

The same issue has now, astonishingly, become relevant in Maryland.  For the primary, voter cards needed for electronic voting machines were not delivered on time to most polling places in Montgomery County.  Across the state, computerized databases of voter registrations crashed, election judges did not show up, and many who did show up were not qualified to run the complicated equipment.

Election officials in Montgomery County had distributed provisional ballots with the wrong candidates for certain legislative districts, and did not have the printers to download the results from most voting machines.  In Prince George’s County, the officials seem to have simply missed counting votes from many voting machines entirely.

These serious problems in Maryland raise the question of whether we had made the voting process too complicated and problematic.  In Florida in 2000, Volusia County, which used an optical scanner, was one of several smaller counties with the fewest errors.  For example, out of about 126,000 votes cast in one county, only 126 were discarded, a very impressive rate.  Moreover, there was a paper backup, something that has been rejected in Maryland.  Without an adequate paper trail, neither voters nor candidates can exercise statutory rights to contest the results.

No matter what system we use, however, competent, organized and trained staff must always be present.  In Palm Beach County in 2000, many voters realized that there were problems with their ballots or that they had made an error (corrected with overvotes), and they requested new ballots.  Thousands of affidavits were collected stating that these requests were denied.  Amazingly, the untrained election officials rejected their requests in overwhelming numbers.

In Maryland, there were several close outcomes for State House races.  We will never know how those initially turned away by the absence of voter cards would have voted.  And we can only hope for the best with the respect of copying onto official ballot cards of votes cast on photocopied ballots, ballots with misprints and votes put on other pieces of paper.  Once these and other provisional ballots are counted, we will see how close some of those races are.

By the standards of the Beckstrom case, what happened in Maryland on Sept. 12 was indeed intolerable.  What is the solution?  At the very least, by November, state and local election officials should start blaming each other and work together.  Voters deserve a carefully organized and supervised Election Day, with well-trained workers at each polling place.  Election officials must make sure that every vote counts.