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.