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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.
