|This article appeared on Bob Bauer's Blog. It is reposted here with permission of the author.
Just as it is wise to be suspicious of legal solutions to political problems, it is unfortunate when political reflexes overwhelm thought about legal problems. The Wall Street Journal this morning chooses to misrepresent the stakes in the current contest over the outcome in Florida’s Thirteenth Congressional District, “Sore Winners,” Wall Street Journal (Dec. 1, 2006) at A12.
Here we have the stale suggestion that a question about machine malfunction, raised by some 18,000 undervotes in an ultra-tight race, can be explained only by partisan refusal to accept a disappointing outcome. The Journal implies that Democrats seek to win on a statistical demonstration of probable victory—ignoring their efforts to secure comprehensive testing and cooperation of the state and the machine manufacturer in securing access to the source code to check for bugs. The Journal even brushes off the claim, for which there can be no meaningful support, that “negative campaigning” accounts for extensive voter shunning of this race.
The Journal concedes that concerns about the machinery might be held in good faith, but it won’t give credit for any such good faith here. “But back during the Florida debacle in 2000, before touch-screen voting was widely used, the same Democrats and liberal columnists deplored the inaccuracy of paper ballots and those ‘hanging chads’. Indeed they did; they were not alone, as even the Journal seems to accept, referring to the Florida election as a “debacle.” Since that time, a major—though still inadequate—national effort has been made to upgrade the reliability, verifiability and overall public confidence in voting systems. Attention has turned to the strengths and weaknesses of various voting technologies, and no one reasonably disputes that the issues to be responsibly considered and addressed are serious.
As the Journal scorns the Florida Thirteen issues as so much partisan posturing, the Washington Post reports on the National Institute of Standards and Technology ‘s critical assessment of machine systems, such as touch-screens without a paper trail feature, that do not allow for independent ballot verification and recount. Cameron W. Barr, "Security Of Electronic Voting Is Condemned Paper Systems Should Be Included, Agency Says," Washington Post (Dec. 1, 2006) at A1. These systems have produced a widening problem of voter confidence. They have also presented practical problems in addressing questions that arise naturally—and indeed reasonably—in close elections where problems or anomalies in the vote count have surfaced. And controversies such as these are not common, which is hardly what one would expect if, as the Journal claims, partisanship is the cause of complaints.
The question presented in Florida Thirteen is relatively straightforward: where a legitimate question is raised in a close race, such as where an extraordinary undervote materializes, will the legal process allow for a competent, comprehensive testing for possible machine malfunction? This does not seem, in these times, much of a partisan ploy unless, in a throwback to other “debacles,” the Journal and others insist on making it so.
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