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With a series of body blows dealt to Minnesota Senator Norm Coleman's court challenge to recount results from the November 2008 elections, it appears very likely that Al Franken will emerge the winner of the Minnesota Senate race. . . after having trailed by several hundred votes from the election night results. As a stand alone result this would be little more than a minor footnote in election history, except that this comes as the third instance in 8 years that Democrats have employed manipulative recount strategies in an attempt to overturn election results, and the second time it has been successful. Coleman himself seems to have resigned himself to this fact, having accepted a position with a lobby group even while pursuing his court challenge. He joins the ranks of Washington State's Dino Rossi, who himself went from leading on election night in 2004 to being edged out after some selective processes were employed to produce a Democratic victory. And, of course, let us not forget the Florida 2000 fiasco.
In fact, let us revisit at least the aftermath of the Florida 2000 fiasco because it presages an oversight of massive proportions on the part of our democracy. In the immediate aftermath of the controversial results of Florida 2000 several things came to light. First, states tend to employ differing standards and practices of voting from county to county. That means in one county in 2000 you could have had punch card voting, in another you could have had optical scanners. The methods were largely the result of local and state funding for the canvassing boards, leading more wealthy counties to have more high tech voting methods, while poorer counties ended up with cheaper, more low-tech methods. Second, we found out that every method of voting has an inherent error rate. More importantly, not all error rates were equal. Third, we learned that once we counted the votes and got into recount territory, the process would continue into something that had very little to do with the will of the electorate and a lot to do with the skill of lawyers and political predispositions of judges.
Of course, we Americans are a problem-solving people. Florida clearly highlighted a problem with our Democracy, and with gusto we sought to fix it. The problem is, we fixed the wrong problems. The chief focus of the fixes of the 2000 problems came in the Help America Vote Act of 2002, and mainly aimed to fix problems one and two in the aforementioned paragraph. Like most pieces of federal legislation, it failed in its task because it failed to correctly identify the real underlying problems, while trying to achieve the unreasonable or unnecessary.
Fix number one, establish minimum election standards, was aimed at solving the problem of differing counting methods from one county to another. Well, it was aimed at solving what we thought was a problem. The truth is, counting votes by different standards in one county as opposed to another isn't really a problem. Theoretically it means people in one polity are being treated differently than people in another, in practice this is a zero net effect problem, or at least it should be. We already count votes differently from one polity to another if you look at it on the state level. Michigan has different standards of vote counting than does Texas. This is a fully accepted state of affairs, by the way, according to the US constitution. Everyone flips out, though, when it comes to county discrepancies within states. What they fail to observe, objectively and calmly, is that the votes for all candidates will be counted by the same standards throughout the county, and that canvassing boards are chosen locally, not state assigned. So, to use Florida 2000 as an example, it doesn't matter if Broward and Palm Beach use different methods to count the votes, in each county both Gore and Bush votes will face the same degree of legal threshold. This means the sum of all counties will produce a vote breakdown influenced by one chief factor, the actual proportion of voters in those counties supporting one candidate or another. Disqualification of votes will occur proportionally, meaning the disqualified votes, as a percentage, will look like the percentage breakdown of qualified votes. Whether you have uniform disqualification methods across the state or not does not affect this dynamic.
The second of the fixes proposed by the act was to scrap punch card voting. This, of course, was designed to address problem #2, the error rate of voting. The problem is we allow morons to vote. Morons can screw up any system, no matter how idiot proof. The proof of this is in the pudding. While the punch cards had a 2.5% error rate, the optical scanners had a nearly identical 2.3% error rate, and touch screens had a greater error rate at 3%. The question of the most reliable voting method really evades the core issue, is it the voting method, or the stupid voter who puts an "X" in a bubble where the instructions clearly read "fill in the bubble completely" that is to blame? Instead we junked the punch cards, making them the grand culprit for lazy, stupid, incompetent people whose votes shouldn't count by virtue of their basic failure of intelligence in failing to make voting machines work. It belies another haunting issue: if we managed to count the votes of these truly incompetent people, and it influenced the result of the election, are we really comfortable having the candidate of the morons elevated to office? But I digress, changing voting methods certainly didn't rid us of messy recount battles with scant confidence in the final result. Minnesota 2008 showed us that people can fail with optical scanners too, and fail in grand fashion.
Of course the legislation failed to address the real issue that leads to recounts; unscrupulous sore losers who descend on the state with phalanxes of lawyers to game the counting methods in order to produce a favorable result. Post Bush v. Gore guilt ensured that, while reform might occur for the voting aspects, meaningful reform of recount processes would never happen. As a result we had a Washington governor's race in 2004 where the Republican winner after an election night tally and subsequent state mandated recount was robbed of the position after a gamed recount (where some votes were conveniently "discovered" significantly later on). Follow that up with a 2008 Minnesota senate race where a Republican leader was overtaken through some convenient vote counting in certain counties (some more vote "discovering" along with some double counting of votes). Equal standards of counting from county to county are non-existent since vote discovery in x, y, and z counties never leads to a full statewide review for the same problem in all counties (you know, giving the opposition a chance to "discover" some votes to offset). Better voting methods have been proven not to be idiot proof, as the legal challenge ballot by ballot counting we saw in 2000 with the punch cards repeated itself with fill-in-the-bubble optical scanner ballots in 2008. HAVA is a total failure.
So, let's fix the problem that leads to these recount battles. The first step in this is to acknowledge one thing, in close elections we need to pick a winner. This is not a process to find the will of the voters, because elections this close already tell us the will of the voters. Either one is going to leave about as many voters happy with the end result as upset with it. Nobody has a mandate. If anyone had a mandate, this wouldn't be close enough to recount. It is no service to democracy to call into question the validity of the count. As we saw in 2000, even when the winner of the initial count prevails in the end the process of fighting it out and calling into question the validity of the vote leaves the losing half feeling that the winning half was illegitimate. In 2004 Dino Rossi's supporters certainly felt Gregoire was illegitimate and stole the election. In actuality the results of recount fights like this have less to do with voter intent anyways than the competence of the candidate's legal team and the general tendency of party control of the courts. That's where all the key vote-counting schemes are crafted and implemented to produce a result.
Now that we've divorced ourselves of the vain pursuit of the popular will in recounts, it's not hard to guess what comes next. Scrap the damn things altogether. They're nothing but an expensive distraction that hurts our confidence in the legitimacy of our elected government. But, I can already here the cringes out there on that one. So, a nice little compromise on that position, recounts will occur in the presence of the canvassing board and the media, NOT campaign lawyers. The campaigns should have zero input on which votes count or not, and they certainly shouldn't be able to litigate every vote with the canvassing board as happened in the Minnesota recount. Also, the mathematical thresholds to trigger recounts should be the only condition for triggering a recount. Candidates should not have the power to request one (because they always do, what have they got to lose). As a final blow to these matters, overturning a count in a recount should not land you into office. If anything it reveals a failure on the part of the mechanisms of vote counting to accurately measure the desire of the voters. Instead, any result overturned by a recount should land the contest into a special election 90 days hence from the conclusion of the reversal count. That way the voters get a second chance to make their voices heard on the matter.
It won't happen, of course. At least, not right now. Democrats are far better at gaming recounts than Republicans, and they're the party in power. However, the Republicans are in a good position to start getting some issues to run on in future elections. Newt Gingrich's Contract with America included a number of systematic reforms. What the party needs is a new contract, and perhaps there's room in that new contract for this we bit of systematic reform. It would be a nice thing to see a major party at least acknowledge that we need to fix the broken recount system, one way or another.
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