[EL] Bush v. Gore ballots question

[Paul Lehto]

Scalia's opinion in Bush v Gore had a little merit to it, because the
"hanging chads" could or pregnant chads could indeed "degrade" [sic]
into affirmative votes with each subsequent handling.  With respect to
most other tangible ballot classes, this degradation is either
essentially untrue, or true only very marginally.  His conclusion,
namely that a subsequent recount is rendered inaccurate, is obsolete.
Indeed, nearly every statutory structure (presuming an untampered
secure chain of custody of ballots) provides for subsequent recounts
that are deemed to be more accurate than the original count, usually
because of differences in methods, but also sometimes because of
differences in carefulness with which they are processed.

Many states, if not all, traditionally reserved a hand recount for
last, as the most accurate even if time-consuming method. Hand counts
are still  the method still  used today by bank tellers, with opposed
persons (customer vs. Teller) doing counts and incentivized to catch
each other in errors.   Not very many people walk away from a large
cash withdrawal at an ATM or teller without counting the cash by hand.

This simple but ingenious system of opposed counters, kind of like 2
kids taking a candy bar and one cutting it in half and the other
choosing the first half, transforms regularly fallible humans and into
something quite substantially more reliable.  Done right, hand
counting is a bit than just "more reliable," hand counts of the right
design are the ultimate check of accuracy of any kind of machine
counting.

But it's always important to point out how limited recounts are in
their scope: they detect only arithmetic errors in counts, not chain
of custody problems and recounts do not detect even the traditional
stuffed ballot box (if it is stuffed before the first count).  A dozen
hand recounts of the perfect type will never detect a stuffed ballot
box that was stuffed prior to the first count, only those stuffed
between the first and second counts, and the arithmetic errors.

Paul Lehto, J.D.

On 5/25/11, Rick Hasen <rhasen at law.uci.edu> wrote:
> 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
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>


-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)