At this point, the key to winning is in the closing argument. Here is my
The US Supreme Court (Thornburg v. Gingles, 478 US 30) held that
statistical evidence can be used to prove a point, even without direct evidence.
We have the following statistical evidence:
Undervotes are 5X higher for counties which use punch-card machines
When hand-counted with certain standards, we can identify 25% of these votes
Hengartner testified that the percentage of nonrecorded votes for President
was five times as high in counties with punch-card voting machines as in those
with optical readers. He said a manual recount allowed about a quarter of
those nonvotes to be identified as votes in Broward and Miami-Dade Counties,
but only about 8 percent in Palm Beach County because it used a stricter
standard in judging indented ballots. On cross-examination there were some
inconsistencies between his testimony and a written statement he had filed
earlier, but these were immaterial and didn't invalidate his testimony.
Judge Charles Burton testified that there were an estimated 1,900 net
votes for Gore in Palm Beach
While the counties that were sampled were not a random sample, they were a
mixture of Republican and Democratic counties. So we know it is possible, and even may be
most probable that 1,900 is the correct number. At this point, the best
number we can estimate is at least 1,900 net votes to Gore in Palm
Beach (which used a more conservative standard than Broward). This alone can change the
outcome of the election.
We also have the following facts:
Punch card ballots are only used in primarily Democratic counties.
Had everyone in Florida used the same machine, we wouldn't be having this
Judge Charles Burton said it became clear that certain votes had been cast
for a candidate even though the computer had not picked them up.
The number of votes we are talking about are estimated to be MORE than
sufficient to change the outcome of the election.
We really don't have to prove the definitive reason for the undervotes
(there are many). We can instead (and equivalently in this case)
show that the cause was not related to voter intention. The statistical evidence of that is
overwhelming. Whatevever the cause is, it has frustrated voter intention
by a factor of 5 relative to optical voting machines, not helped expressed it.
So the cause is immaterial: voter error, machine error, etc.
The fact is, dimpled chads happen, and they happen everywhere that punch card
systems are used. We don't have to prove the reason they happen. Indeed, there
are probably a multitude of reasons. We only have to prove that they happen
much more often in these machines than on other machines. And we have done that.
Testimony about rubber doesn't matter. Plastics don't matter. The cause
doesn't matter, so long as we can show the cause is UNRELATED to voter intention. And we have shown that statistically these undervotes are due
to the technology, not to the voter. There is no rational case to be made that
in general, when voters
approaches a punch card machine that they are 5 times more indecisive than an
The legal argument
Florida law (IX.
Grounds for contesting an election include (among others)
"(3)(c) ... rejection of a number of legal votes sufficient to
change or place in doubt the result of the election." or
"(3)(e) Any other cause or allegation which, if sustained,
would show that a person other than the successful candidate was the person
duly nominated or elected to the office in question or that the outcome of the
election on a question submitted by referendum was contrary to the result
declared by the canvassing board or election board."
The relief which may be granted in a contest is as follows:
Beach v. Harris, the Florida Supreme court court wrote:
"(8) The circuit judge to whom the contest is presented may fashion
such orders as he or she deems necessary to ensure that each allegation in the
complaint is investigated, examined, or checked, to prevent or correct any
alleged wrong, and to provide any relief appropriate under such
Twenty-five years ago, this Court commented that the will of the people,
not a hyper-technical reliance upon statutory provisions, should
be our guiding principle in election cases:
[T]he real parties in interest here, not in the legal sense but in
realistic terms, are the voters. They are possessed of the ultimate interest
and it is they whom we must give primary consideration. The contestants have
direct interests certainly, but the office they seek is one of high public
service and of upmost importance to the people, thus subordinating their
interest to that of the people. Ours is a government of, by and for the
people. Our federal and state constitutions guarantee the right of the
people to take an active part in the process of that government, which for
most of our citizens means participation via the election process. The
right to vote is the right to participate; it is also the right to speak,
but more importantly the right to be heard. We must tread carefully on
that right or we risk the unnecessary and unjustified muting of the public
voice. By refusing to recognize an otherwise valid exercise of the right of
a citizen to vote for the sake of sacred, unyielding adherence to statutory
scripture, we would in effect nullify that right.
In short, 102.168(3)(c) and (e) are satisfied because this election is so
close and because these undervotes which have not been counted have a nearly
certain probability of changing the outcome. 102.168(8) thus applies...
The remedy: should one be ordered?
102.168(8) says a judge may order "any relief appropriate under such
The consequences of NOT ordering a remedy would
- not be consistent with the ruling of the Supreme Court which emphasized
that people be heard
- unfairly disenfranchise voters in counties using punch cards (primarily
- guarantee, to a high level of statistical certainty (as shown from
Burton's extrapolation, and from the Miami Herald study and many other
studies posted on the Internet (which I hope you guys included in your
filings), that the wrong candidate will be elected.
What should the remedy be?
We don't have much time to fashion a remedy. A truly fair remedy would put
voters from punch-card counties on an equal basis with other voters. We don't
have to do that. We suggest that some remedy is much better than no remedy
at all if we are to ensure that the proper candidate is elected.
The right to be heard is at stake here. If we have a dimpled chad, we cannot
know if that voter meant to vote or meant not to vote. But we can determine a
standard that is to be applied in these cases. In order to preserve that
right for people who vote with punch card ballots vs. optical ballots, we
must use a standard of interpretation that can interpret the intent in 80% of
those undervoted ballots. This is critical to determine the proper winner in
a close election.
Attempt to level the playing field
The remedy must be appropriate to remedy the wrong. The remedy we suggest
does not fully level the playing field. To fully level the playing
field, we'd have to have a process that could identify 80% of the undervotes. We
seek to at least attempt to level the playing field part way, but as much as
possible under the circumstances. Here's how:
Apply the BROWARD counting STANDARD in punch-card counties and count the
The best solution is to order recounts in punch-card counties that have not
re-counted using the Broward standard, such as Palm
Beach, that have not re-counted using the Broward or Miami-Dade standard to
judge these ballots.
Statistically extrapolate if insufficient time to finish by counting ballots
selected at RANDOM
In view of the time pressure, if such a count of votes which have never
yet been counted even once cannot be completed by the DEADLINE, that we extrapolate
the statistics of the ballots counted form our random sample to the rest of
the ballots. Therefore, it is imperative that the order of vote counting be
randomly selected, e.g., randomly selected precinct order, or totally randomly
Steve Kirsch Political Home Page