EQUAL PROTECTION FOR VOTES

Henry E. Brady,

Professor of Political Science and Public Policy

Director, Survey Research Center

University of California, Berkeley

“Counting all the votes” and “fairness” are catchwords of the now more than five-week long post-election campaign.  These principles have collided repeatedly as the Gore campaign seeks manual recounts and the Bush campaign protests the unfairness of these recounts.  “The lack of uniform standards for counting ‘votes’,” the Bush campaign argued in its brief to the United States Supreme Court, “means that voters who cast identical ballots in different counties will likely have their ballots counted differently.”  The result, according to the Bush campaign’s Supreme Court brief, is a violation of the Equal Protection Clause of the Fourteenth Amendment which “forbids the state from treating similarly situated voters differently based merely on where they live.”  If the Bush campaign is right, and the Supreme Court accepts their argument, then one outcome of our national exercise in electioneering will undoubtedly be a succession of Supreme Court cases that will change the way that we vote in America. 

We all agree voters should not be treated differently based merely on where they live.  That is why the differences in the Broward County and Palm Beach County standards for hanging chads and dimples seems so disconcerting.  But if these different standards upset us, then we should be even more troubled by the fact that the different voting devices used from one county to another have far greater impacts than different standards for manual recounts.  Different voting devices not only lead to vastly different numbers of spoiled ballots, they also interact with personal characteristics such as education, infirmity, and voting experience to produce biases in our voting system.

Consider Florida.  The Bush campaign is right in saying that there were different standards for counting undervotes (those ballots where the tabulating machine does not detect a vote) in Broward and Palm Beach County.  In Broward County, the percentage of undervotes that was considered real or "legal" votes was about 20%, and the Bush campaign believes that this is too high because it includes dimpled ballots.  In Palm Beach County, the percentage of undervotes that was considered legal votes was about 10%.  The Bush campaign has also objected to the Palm Beach County standard, but it was favorably compared to the Broward County standard by the Bush campaign’s lawyer in his replies to questions at the Supreme Court on Monday.  Because there are about 62,000 undervotes in Florida, the number of votes that would be recovered if the Palm Beach standard is applied across Florida would be 6,200 and the number that would be recovered if the Broward standard is used would be 12,400.  The difference is 6,200 votes, and the Bush campaign fears that these extra 6,200 votes might give Al Gore even more chances to become President of the United States than just the 6,200 that would be recovered if the more restrictive Palm Beach County standard were used, although their preference is clearly to see none of the undervotes considered.   

The increase in new votes that results from using the Broward versus the Palm Beach County standard is worrisome, but it pales in comparison with the difference in the undervotes from using the Accuvote optical scanning devices versus the older punch card systems.  The Accuvote devices (used in 16 Florida counties) have an undervote rate of about three per thousand which amounts to 18,000 undervotes statewide if Accuvote were used everywhere.  The punch card systems (used in 24 counties) have an undervote rate of about fifteen per thousand which amounts to about 90,000 undervotes if applied statewide.  The difference is 72,000 votes – more than ten times the difference between the Broward and Palm Beach County standards. 

But that is not all.  Different voting machines lead to different numbers of total overvotes (those ballots where the tabulating machine detects two or more votes for the same office).  The overvote rate for the Accuvote devices is about three to four per thousand which amounts to 21,000 votes if applied statewide.  The overvote rate for the punch card machines is about 25 per thousand which amounts to 150,000.  The difference between these two vote recording systems would be 129,000 votes – more than twenty times the difference between the Broward and Palm Beach County standards.

By any reckoning, the machine variability in undervotes and overvotes exceeds the variability due to different standards by factors of ten to twenty.  Far more mischief, it seems, can be created by poor methods of recording and tabulating votes than by manual recounts. 

Moreover, there is evidence that undervotes and overvotes are concentrated in areas with poor people, minorities, and older people.  In Duval County, Florida, for example, the overvotes and undervotes were heavily concentrated in poor, black precincts.  In Florida we know that the punch card systems are concentrated in counties that went for Gore.  The Gore fraction of the two‑party vote in the 24 punchcard counties is 53%, while the fraction of the two-party vote in the 16 counties using the Accuvote system tilted towards Bush (51.4%).   Twenty-five of the remaining 27 counties which lean heavily towards Bush (58% of the two-party vote) have undervote and overvote rates much closer to the Accuvote system than the punch card devices.  As a result, George Bush gained thousands of votes because his support came from counties with better voting devices that reduced both undervotes and overvotes.  We know much less about the biases that come from manual recounts, despite a great deal of rhetoric on the topic.  There may be biases from a manual recount of undervotes, but they must be much smaller than the biases from poor voting devices.