While the answer is surely the same (the margin is too large), the more
relevant question is did Kerry lose enough votes due to punch cards that,
but for that system of balloting, he would have had a credible case to await
the provisional ballots (likely to tilt in his direction) and related
litigation possibilities.

And, while not legally relevant, to me the normative issue is whether
between punch card issues and provisional balltoing, it is reasonable to
imagine that the number of votes Kerry lost due to long lines amidst rain
exceeds Bush's margin of victory.  Between anecdotal and media evidence, the
stories of long lines in urban areas must have been prevalent by the
afternoon, and one explanation for the exit polls showing Kerry stronger
early than late could be that those planning to vote after work but before,
say, taking care of their kids felt they couldn't afford to wait on long as
they believed they would have to.

And the other point re lines is that the higher population densities of
urban areas relative to their rural and exurban counterparts makes it a near
certainty than inadequately funded election systems will harm Dems more than
GOPers.

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of DANIEL
TOKAJI
Sent: Thursday, November 04, 2004 10:12 PM
To: election-law
Subject: Re: Is it Possible Kerry Lost Ohio Because of Punch Cards?


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