One Person's Opinion

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Thursday, December 23, 2004
Down in San Diego, 120 miles south of where I am, it seems they are having a food fight a la Bush v. Gore to determine who the new Mayor will be. The incumbent, Dick Murphy, was forced into a three way race when surf-shop owner Donna Frye commenced a write-in campaign. (San Diego is one of the few cities in America-- all of which are concentrated in Hawaii and California-- where owning a surf shop is considered serious training for a politician.) The election resulted in a near tie, with Murphy carrying the city by several hundred votes.

However, the new optical-scan ballots used in San Diego clearly instructed voters to darken an oval next to the write-in line in order to cast a write-in vote. This was necessary so that the vote-counting machine would indicate that the ballot contained a write-in vote. Apparently, a state law requires that the oval be darkened for the ballots to count. The media inspected the ballots, and it turns out that if the undarkened oval/write-ins for Frye are counted she wins the election rather than Murphy.

You may remember similar issues in the Bush v. Gore Florida food fight in 2000. Ballot instructions in Florida-- as they did just about everywhere else where punchcard ballots were used-- stated that voters needed to remove the chips (the famous "chad") from the back of the ballot card before dropping it in the box. Nonetheless, ballots of voters who did not follow these instructions were nonetheless counted in some counties (and not in other counties, creating the alleged equal protection violation that was at the heart of the Supreme Court case that eventually stopped the recount). "Hanging chads" that were partially detached from the ballot, and "dimpled" and "pregnant" chads that were completely attached but appeared to have been contacted by the voting stylus, were counted by some counties.

There was, however, one big distinction between Florida 2000 and San Diego 2004. In the Florida recount, the governing law required that elections officials attempt to determine the intent of the voter. Under that standard, voters who disregard instructions can still have their votes counted.

San Diego thus presents the cleaner question-- under California law, the voter must follow the instruction and darken the oval. That instruction is clearly printed on the ballot, which the voter is supposed to read before voting. And the instruction has a legitimate basis, because it allows the City to save money and time and to obtain a more accurate and honest count by using machines to count the ballots rather than counting them by hand.

Nonetheless, we have absolutely no doubt that everyone who did not darken the oval but did write in Donna Frye's name intended to vote for Frye. So we have a clear conflict between the "follow the directions" standard and the "intent of the voter" standard.

I know this opinion goes against what is thought to be the "liberal" position on these issues, but I am in the "follow the directions" crowd. Not that I take any glee or pleasure in disallowing the votes of people who clearly manifested an intent to vote for a particular candidate. But an intent to vote is different than a vote. If you forget what day is election day, or accidentally leave the polling place with your ballot and do not discover the error until after the polls close, you may have intended to vote for someone, but you have not cast a countable vote.

And the fact of the matter is, Americans are way, way too cavalier about not reading instructions. We throw away instructions to appliances without reading them. We don't read the owner's manual when we buy a new car. We sign all sorts of contracts without reading the large print, much less the small print. And in all these circumstances, we can suffer harm, physical or financial, and yet we still do it-- though we sometimes ask the court system to save us from ourselves afterward.

So why, exactly, should we be solicitous with voters who don't read ballot instructions? We print the things in many different languages-- as well we should-- to ensure voters understand them. Yes, I know, the franchise is too important to compromise based on technical rules, but by the same token, the franchise is also too important to casually exercise without even bothering to read the directions. And remember, even under the liberal Florida standard, many votes weren't counted in 2000 (a fact liberals are painfully aware of)-- so it's not like applying liberal counting standards will ensure that everyone's intended vote gets counted. To the contrary, such standards may very well give voters a false sense of security.

If you want to make sure every vote counts, let's have educated poll workers who offer real assistance to voters as to how to ensure their ballots are properly marked. Let's have voter education projects and television and radio and print and billboard ads to remind voters to read the instructions and to vote carefully. Let's encourage political parties to let their members know how to fill out their ballots. And by all means, let's have the easiest-to-understand ballots we can possibly design-- the "butterfly ballot" was a true outrage. (In fact, all these things should be happening even if the counting standard is liberal, because as noted above, even where such standards prevail, it is still possible to have one's intended vote not be counted.)

But in the end, exercising the franchise requires real responsibility. Indeed, in a society that asks far less of its citizens than it once did, this is one of the few responsibilities of citizenship. It may seem like a pointless and silly exercise to require San Diegans to fill in that oval, but doing so would remind citizens of how important it is to take a few minutes to read the instructions before doing something important. Maybe it's a lesson that could carry over to other areas of life as well.

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