Section 4.1 - Voting Equipment
This topic is monitored by Moritz Law Professor Daniel Tokaji. For up-to-date news and commentary on voting technology, the Help America Vote Act, and other voting equality issues, see Professor Tokaji's Equal Vote Blog.
Miscast Ballots Easily Could Decide Close Races
There is a real possibility that the 2000 voting debacle in Florida will be replayed in Ohio come Nov. 2.
That's because about 70 percent of Ohio voters will use the punch-card machines similar to those that caused such "hangingchad" turmoil four years ago. The votes of many of these people will not be counted. As Ohio Secretary of State J. Kenneth Blackwell has acknowledged, the 29 counties with the highest rates of uncounted votes in the 2000 presidential election all used punch cards; the seven counties with the lowest rates used other equipment.
Punch cards result in a large number of lost votes. For example, voters using punch cards in Montgomery County are more than four times more likely not to have their votes counted than a voter in Franklin County, which uses more-modern voting technology. Statewide, at least 55,000 presidential votes will be lost because of unreliable voting equipment.
People of all races will see their votes denied because of punch cards, but blacks will be especially hard hit. Largely because of the educational disparities in the state, punch cards generate a substantial "racial gap," resulting in an unusually high number of lost votes in heavily black precincts. In effect, the punch-card system functions as a sort of technological literacy test.
Worse still, in a close election, the punch card's margin of error could exceed the margin of victory. Given that Ohio is a key swing state, those errors could decide who occupies the White House for the next four years.
How did we end up in this predicament? That question has many experts scratching their heads.
The public wasn't aware of the problems with punch cards until the 2000 election, but a handful of social scientists had studied them long before that. One expert, Roy Saltman of the National Bureau of Standards, recommended as early as 1988 that the punch-card system be abandoned.
Since 2000, study after study has found that punch cards are unreliable. Some states have replaced their systems with better technology. Other states, including Ohio, have failed to do so, leaving concerned citizens with no choice but to turn to the courts.
In 2002, the American Civil Liberties Union brought suit in Ohio, on behalf of some of those people. The ACLU seeks to have punch-card systems replaced with more reliable technology that will prevent mistaken "overvotes" and give voters the opportunity to check for errors. There are electronic and paper-based systems that have this feature, commonly known as second-chance voting, because it allows voters to verify their choices before casting their ballots.
Concerns over electronic voting are no excuse to keep using punch cards. If counties are worried about electronic-voting security, they may choose a paper-based system that allows second-chance voting.
Lack of funds isn't an excuse, either. Ohio already has received $132 million in federal funds to upgrade its voting system. And to his credit, Blackwell has acknowledged that punch cards need to be replaced with second-chance systems.
As he put it: "In a study of 'over' and 'under' voting in Ohio, it was clearly demonstrated that punch-card voting was unreliable to the extent votes cast by thousands of Ohioans were not being counted in the final election tabulation."
Blackwell has also written: "With Ohio slated by both national parties as a battleground state, the possibility of a close election with punch cards as the state's primary voting device invites a Florida-like calamity."
Blackwell's admissions are consistent with the findings of experts throughout the country. Ironically, the lone exception is a report provided by the state's paid expert, John R. Lott Jr., of the right-leaning American Enterprise Institute. Lott concedes that punch cards do poorly in presidential contests but he concludes that they do better than some other systems in so-called downballot races, such as state legislative contests.
The problem with this analysis is that voters in different parts of the state have different candidates on the ballot. Some of these races are competitive, while others are not. In some but not others, candidates are running unopposed. Some races involve popular candidates, while others do not. In short, there's no way of telling whether voters intentionally have chosen to abstain in downballot races. It's therefore fallacious to attribute the nonvoted ballots in those races to newer voting technology.
Ohio, which promised last year that punch cards would be gone by this election, would have been better off upgrading its voting technology instead of spending thousands of taxpayers' dollars for a flawed report.
What's unclear is whether Ohioans will be forced to continue using punch cards in 2005 and 2006.
The trial of the ACLU's case was continued last month and is to resume in late September. We only can hope that this case results in a court order that will ensure that 2004 is the last time that our votes are left hanging by a chad.
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