Also, some of the so-called undervotes for president
may actually be votes for Ralph Nader, whose name
appeared on the ballot in many counties. Signs were
supposedly posted in polling places warning that Nader
votes would not be counted, but that wouldn't stop
lots of people from voting for him anyway.
Also there are probably several thousand Nader and
other write-ins that haven't been canvassed yet.
Nader got over 5,000 write-ins in Texas, so he might
have got that many in Ohio. Under current Ohio law,
we will never know, since Nader didn't file as a
declared write-in candidate by the September deadline
for doing that (since at the time he expected to be on
the ballot).
--- DANIEL TOKAJI <tokaji.1@osu.edu> wrote:
The answer to the question posed in the subject line
is a definite "no," and I say this as one of the
lawyers in the ACLU of Ohio's case challenging punch
cards. There were approximately 76,000 residual
votes (combined overvotes and undervotes) cast with
punch cards in Ohio this year, according to press
reports. Punch cards reportedly had about a 1.9%
residual vote rate. The lowest you can hope for
with better technologies is probably around
0.3%-0.7%, since some voters in every election
intentionally undervote -- they deliberately choose
not to cast a vote for President. That means that
around 48,000 - 64,000 Ohio votes were lost that
would likely have been counted with better
technology.
It is probably true that Kerry lost more votes due
to the use of punch cards than Bush. In 2000, about
two-thirds of the precincts with the worst residual
vote rates (i.e., those in the top 10%) went for
Bush. But even assuming that Kerry lost two votes
for every vote lost by Bush, that amounts to a net
gain of no more than about 21,000 votes on the most
optimistic (from Kerry's perspective) assumptions --
far less than the 135,000 by which Kerry was behind
last time I checked. Henry Brady or other empirical
researchers can probably come up with a more precise
estimate, but I think that this back-of-the envelope
calculation is probably in the ballpark.
Punch cards probably did spell the difference
between defeat and victory in Florida 2000. They
did not in Ohio 2004. I do think it's imperative
that Ohio and other states still using punch cards
get rid of them, and replace them with either
precinct-count optical scan or electronic machines.
That doesn't necessarily mean, however, that states
must go to a uniform system, since both of these
technologies perform well in terms of lowering the
number of residual votes.
Dan
Daniel P. Tokaji
Assistant Professor of Law
Ohio State University
Moritz College of Law
55 W. 12th Avenue
Columbus, OH 43210
voice 614.292.6566
fax 614.688.8422
email tokaji.1@osu.edu
http://equalvote.blogspot.com
ATTACHMENT part 2 message/rfc822
Date: Thu, 04 Nov 2004 16:00:27 -0800
From: Rick Hasen <rick.hasen@lls.edu>
Subject: Re: Is it Possible Kerry Lost Ohio Because
of Punch Cards?
To: Marty Lederman <marty.lederman@comcast.net>
CC: election-law <election-law@majordomo.lls.edu>
---------------------------------
Marty,
As you may know I have made that argument about punch
cards repeatedly,first in my 2001 Florida State
article on the meaning of Bush v. Gore:
http://www.law.fsu.edu/journals/lawreview/downloads/292/Hasen.pdf
and more recently in an amicus brief I filed on my own
behalf in theACLU punch card litigation during the
California recall:
http://news.findlaw.com/hdocs/docs/elections/svrepvshlly82703amirh.pdf
But there are others (including Roy Schotland and
Abner Greene) whoread BvG more as a case about due
process, where the issue is one ofgiving unfettered
discretion to partisan election officials. Underthat
reading, I think one can argue that there is no
constitutionalproblem with intra-state disparities in
voting technologies, even ifthey have racial and class
correlations.
The policy defense I think would be that jurisdictions
should be freeto make resource allocation decisions,
such as to choose a newambulance over more reliable
voter technology. I don't buy theargument, but I have
heard it often.
Rick
Marty Lederman wrote:
Well, whether or not he's correctabout the
actual numbers, can we all agree that it is
inexcusable thatvoting mechanisms are not uniform
throughout a state? And, moreparticularly, that there
is no justification for a state tolerating amuch
higher degree of discarded or unreadable votes in
particularprecincts -- typically correlated with class
and/or race? (Indeed, asRick has often argued, it's a
scandal of sorts that, after 2000, thereis not a
federally imposed uniform nationwide "manner" ofvoting
for federal office.)
I would go further and argue that ifthe equal
protection rationale of BvG is taken at allseriously,
then it is surely unconstitutional for a state to
permitsome counties to use voting methods that are
foreseeably far lessreliable and accurate than those
used in other counties. This was,in essence, the
heart of the claim raised in the ACLU litigation in
theCalifornia recall election. I thought it was a
good argument then (Iworked on the case), and I do
now. But even if you disagree -- if youbelieve either
that BvG's equal protection rationale was abunch of
hooey or that it can somehow be limited to the
particular"facts" of that case -- is there any policy
justificationfor the disparities that continue to
exist, other than the actual,inadequate "reason"
(namely, that some counties are poorer thanothers)?
----- Original Message -----
From: RickHasen
To: election-law
Sent:Thursday, November 04, 2004 6:05 PM
Subject:Is it Possible Kerry Lost Ohio Because of
Punch Cards?
Is it Possible Kerry Lost Ohio Because of
PunchCards?So alleges Greg Palast here.I have no idea
of Palast's numbers are correct, and in
particularwhether he has lumped together both votes
lost by the punch cardmachines and deliberate
undervotes. I haven't seen any undervotefigures yet
for this election. I'd appreciate hearing from others
whohave some data to evaluate this kind of claim.
-- Rick HasenProfessor of Law and William M. Rains
FellowLoyola Law School919 South Albany StreetLos
Angeles, CA 90015-1211(213)736-1466(213)380-3769 -
faxrick.hasen@lls.eduhttp://www.lls.edu/academics/faculty/hasen.htmlhttp://electionlawblog.org
-- Professor Rick HasenLoyola Law School919 South
Albany StreetLos Angeles, CA 90015-0019(213)736-1466
- voice(213)380-3769 -
faxrick.hasen@lls.eduhttp://www.lls.edu/academics/faculty/hasen.htmlhttp://electionlawblog.org
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