The Ninth Circuit's controversial decision to delay the California recall election, likely to be overturned today, is just the latest in a series of problems American jurisdictions have had with the way votes are counted. What's different is that this time the problem has occurred before the election. The Ninth Circuit ruled that using certain voting technologies constituted a violation of citizens' Equal Protection rights. Yet the ruling is based on flawed logic. More advanced technology is not the answer to the Equal Protection issue.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Punch-card voting machines are indeed error-prone. We know that from the <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Florida recount fiasco in 2000. Yet there is, at the very least, an actual record of the vote in the shape of the punchcard, whether its chads are hanging, dimpled, or pregnant. In the event of a close election, election officials can review these records with the candidates' agents and reach mutually acceptable decisions. Yet still some voters will fail to have their votes recorded as they intended, which is at the core of the court's reasoning over equal protection issues.
What the court did not properly consider, however, are the limitations of the supposedly better computer-based technologies whose introduction created the discrepancy in voter protection. Most jurisdictions that have introduced these technologies have experienced problems to a greater or lesser extent. Some have experienced minor glitches. When the technologies have gone wrong, however, they have gone disastrously wrong.
Last October, for instance, voters in Raleigh, N.C., complained to officials that they had had trouble registering their votes on the new computer touchscreens. When the officials compared the number of votes registered to the number of people who had turned up to vote, they discovered that 294 votes had disappeared. In two counties that featured prominently in the Florida debacle of 2000, Miami-Dade and Broward, the new technology proved just as big a problem as the old during last fall's gubernatorial primaries. Some precincts where hundreds had turned out to vote recorded virtually no votes at all, although the engineers were able to retrieve the information from the computers later. One of the candidates, former U.S. Attorney General Janet Reno, queried election results from 247 of Broward County's 780 precincts. Some even suspect that the problems might have cost Reno the nomination.
At least on those occasions they knew the extent of the problem. In Georgia last year, observant voters noticed that a different name appeared on the screen after they had tried to register their vote for somebody else. If they were quick, they could correct the error, but the secretary of state's office was unable to say how many votes had been incorrectly counted. As Bryn Mawr College computer scientist Rebecca Mercuri told the Washington Post earlier this year: "If the only way you know that [computer voting technology is] working incorrectly is when there's four votes instead of 1,200 votes, then how do you know that if it's 1,100 votes instead of 1,200 votes? You'll never know."
It is possible that these technological problems are teething troubles that will disappear in time. But for at least the first election when they are used, there may well be serious doubt about whether the result accurately reflects the voters' intentions; and, moreover, there may be no way to audit the result satisfactorily. That is surely an Equal Protection issue in itself.
The answer, if there is an Equal Protection issue, is not to mandate more unproven technology, but rather to mandate proven electoral methods. Placing a simple, unambiguous mark beside the candidate of your choice on a simple — if long — paper ballot and then placing the ballot yourself into a sealed ballot box remains the simplest and safest method of voting.
Optical-scanning technology, if necessary, can ensure the swift counting of such papers, although the United Kingdom, with a larger population and higher voter turnout than California, manages to count all the votes in its general elections by hand during the course of one night. Rejected or disputed papers can be examined individually, with strict standards pertaining to declaring such a "spoiled" vote to be actually a vote for a candidate. The insanity of chads being key to an election will be avoided.
Simple methods have other advantages, too. Complex voting methods can be unfair and unreliable, as we have seen all over the nation. They confuse the less well-educated; they cause problems for the elderly and infirm; and they may well play a part in discouraging people from voting, which many commentators have said is the greatest general problem facing our democratic system.
Yet far from encouraging more people to vote, what the justices decided was that everyone would be equally protected by having their right to vote on the date set by the California state Constitution taken away. This is the wrong answer to the wrong question. Let the recall election go ahead on its appointed date, but use the simplest, easiest-to-check voting procedure possible.