Sauls case

At this point, the key to winning is in the closing argument. Here is my suggestion:

The evidence
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 case.

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 optical machine! 

The legal argument
Florida law (IX. 102.168) says:

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:

"(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 circumstances."

In Palm Beach v. Harris, the Florida Supreme court court wrote:

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 circumstances."

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 democratic)
  • 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 undervotes
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 selected ballots.

Steve Kirsch

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