[EL] Bush v. Gore ballots question

Thu Jun 2 16:39:09 PDT 2011

A related problem still exists today: optical scan machines are
calibrated to detect marks of a certain darkness and anything above
this threshold will be counted as a "vote" in that voting target (a
particular choice in a given contest).  There have been cases (I can
track down, if useful) where differences in calibration between two of
the same model of optical scan voting machine have resulted in
different counts for a given set of ballots (of course, you can
imagine that cruft on the ballots or imaging sensor can cause this
too, but I'd think that this often results in a smaller absolute
change in the count result, whereas drastic differences in calibration
will be more likely to result in large differences). best, Joe

On Thu, Jun 2, 2011 at 3:54 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
> I might be the only one interested in this question, and if so, pardon my
> multiple emails, but in case anyone else is interested, this footnote also
> appears in the supplemental memorandum seeking a stay filed in the Supreme
> Court by the Bush team:
>
> 1. When Miami-Dade attempted to “segregate” its undervotes, pursuant to
> court order in this
> case, it did so by reviewing and recounting ballots previously identified as
> “undervotes”
> through a machine “sort.” Every time punchcard ballots are machine
> tabulated, however,
> they are degraded, causing some chads to fall out and other to become lodged
> in previously
> empty holes. Ballots with hanging chads can be counted as votes in one
> tabulation (because
> they swing open) and as non-votes in the next (because they swing shut). As
> a result of this
> machine “sort,” it appears that Miami-Dade ended up with at least 20
> precincts with more
> undervotes than it had had on the previous counts. Therefore, some of those
> ballots had
> apparently previously been counted for candidates Bush or Gore (or another
> candidate), but
> now were reclassified as “undervotes,” and then (presumably), upon manual
> inspection
> would be counted again for either candidate Bush or Gore. Thus, each of
> those ballots would
> count as two votes for the candidate of choice, diluting the votes of all
> other Florida voters.
>
> It does not appear that the Gore team responded to the degredation point in
> its response.
>
>
> On 6/2/2011 12:01 PM, Rick Hasen wrote:
>
> In response to the question I raised last week (see below), I have heard
> from a number of people that there were apparently no academic studies of
> this question.
>
> But I think I now know where Justice Scalia's "generally agreed" language
> comes from.  See fn. 13 of the Bush team's stay request filed with the
> Supreme court:
>
> With humans making subjective determinations about an absent voter’s intent,
> without standards established by law, there is always the risk that the
> method for
> determining how to count a vote will be influenced, consciously or
> unconsciously, by the officials’ desire for a particular result. That risk
> is heightened significantly here because of the irreversible damage done to
> the ballots during the recount processes and the clear errors that have
> occurred during the manual recounts.13
>
> 13 For example, during the manual recount process, ballots were poked,
> prodded,rumpled, creased, twisted, dropped, stained, tabbed, and otherwise
> mishandled. Not surprisingly, this rough treatment caused massive damage to
> the ballots, including dislodging and removing “chads” from ballots. State
> and county elections officials admitted that the more the ballots are
> handled, the more chads fall out, and, thus, the harder it is to conduct an
> accurate count. Indeed, the counters themselves recognize that they have
> made substantial errors in counting
>
>
> ________________________________________
> From: law-election-bounces at department-lists.uci.edu
> [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
> [rhasen at law.uci.edu]
> Sent: Wednesday, May 25, 2011 11:13 AM
> To: law-election at uci.edu
> Subject: [EL] Bush v. Gore ballots question
>
> In his opinion concurring in the stay order in Bush v. Gore, Justice
> Scalia wrote:  "If petitioner is correct that counting in this fashion
> is unlawful, permitting the count to proceed on that erroneous basis
> will prevent an accurate recount from being conducted on a proper basis
> later, since it is generally agreed that each manual recount produces a
> degradation of the ballots, which renders a subsequent recount inaccurate."
> I recall controversy at the time over whether it was "generally agreed"
> that each manual recount degraded the ballots.  Regardless of what was
> generally agreed at the time, is there any evidence produced by any of
> the post-2000 studies to confirm or rebut the idea of ballot
> degradation?  Private replies would be fine.
> Thanks.
> rick
> --
> Rick Hasen
> Visiting Professor
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://www.lls.edu/academics/faculty/hasen.html
> http://electionlawblog.org
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> --
> Rick Hasen
> Visiting Professor
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://electionlawblog.org
>
> --
> Rick Hasen
> Visiting Professor
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://electionlawblog.org
>
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-- 
Joseph Lorenzo Hall
ACCURATE Postdoctoral Research Associate
UC Berkeley School of Information
Princeton Center for Information Technology Policy
http://josephhall.org/