Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Sunday, November 12
Something Strange in Sarasota
Although last week's elections generally appear to have proceeded more smoothly than anticipated, some troubling issues have emerged in Sarasota County, Florida. As summarized in EL@M posts here and here, there were over 18,000 "undervotes" -- that is, ballots for which no choice was recorded -- from that county, in the race to succeed Katherine Harris as the congressperson for Florida's CD 13. This is particularly troubling since Democrat Christine Jennings trails Republican Vern Buchanan by fewer than 400 votes.
The number of undervotes in Sarasota County amount to approximately 13% of the total votes cast, according to this report. While there are always some voters who intentionally abstain from certain races, this level of undervoting is suspiciously high, particularly since surrounding counties had an undervote rate less than 3% in the same contest, according to this report. If in fact the level of undervoting had been comparable in Sarasota County -- and assuming that those undervoters would have voted the way that other voters did -- Jennings would likely have prevailed.
The anomolous result in Sarasota County has immediately triggered a new wave of suspicion regarding electronic voting technology. The county uses an electronic voting system manufactured by ES&S, the "iVotronic." But as Rick Hasen points out in this New York Times op-ed from yesterday: "[T]his reaction to the bugs and glitches shows that Americans have not learned the right lesson from 2000: the problem is not with the technology of running our elections but rather with the people running them." Professor Hasen is right to focus on the human dimension of election administration. I'd add that adherence to proper procedures is also essential to a smooth-running election system.
Opponents of electronic voting will undoubtedly use this incident to support their argument that paper balloting is more reliable. Some may attempt to use the situation in Sarasota County to fuel their arguments to require a "voter-verified paper audit trail" (VVPAT), something that I've consistently opposed. To this point, there's only one election of which I'm aware in which electronic votes were lost that could have been preserved had their been a VVPAT: the 2004 election in Carteret County, North Carolina in which 4530 votes weren't recorded. It's possible that this could be the second (though we don't know yet). Of course, this pales in comparison to the hundreds of thousands of votes that were routinely lost with the old "non-notice" punch-card and optical-scan systems in each election cycle. Still, incidents like those in Carteret County and Sarasota County are extremely serious and warrant careful scrutiny.
Fortunately, that appears to be what's happening. A recount of the election, along with an audit of Sarasota County's system, is scheduled to begin Monday. That audit will reportedly include parallel testing of the voting equipment -- a procedure that, in my opinion, should be done routinely in every election. There are a number of possible explanations for the high number of undervotes. One is the configuration of the ballot, which some voters have complained made it difficult to notice the race. Another possibility, and a far more serious one, is that voters actually made a selection for the race but that the machines for whatever reason failed to record them.
At this point, we simply don't know for sure what caused the high number of undervotes in Sarasota County's congressional election. As important as it is to determine the winner of CD 13 promptly, it's far more important to figure out what exactly happened, so that similar glitches (if that's in fact what it was) can be prevented. Any proposed reforms should of course await the results of the audit and recount to start this week, but one thing is already certain: sound election administration depends on people and procedures, not just machines.