JAMES LEROY WILSON
X's and Errors
Finally, hand recounting standards we can all agree upon.
by James Leroy Wilson
December 13, 2000
So that election judges could just count the clearly marked X's. Then, if there's a close election, they could just do a recount to make sure they counted the right number of X's the first time. Nice, clean, simple.
As Lee Corso would say, not so fast, my friend.
What about ballots marked with a check mark? Never mind that the instructions for voting mentions putting an X and nothing else, sometimes people just assume they know what they're doing and proceed without following instructions. But if they took the trouble to show up and vote, clearly their votes should count.
Or maybe not. Perhaps votes should count only if instructions were properly followed and X's were put down. The question of the check mark ballots aren't whether they are legal votes, but whether they only look like check marks and are really illegible X's. With both the check mark and the X, we are dealing with two lines, meeting each other at more or less identical angles. To make an X, the two lines must clearly cross; with a check mark they meet but don't cross at all, and one line is clearly shorter than the other.
The fair thing to do is to take all of the previously diqualified check mark ballots and check them again to see if they were good faith, if sloppy, attempts to make a genuine X.
But that leaves open the question of other illegible marks. What if a box is completely colored in, reflecting the obvious voter thought that the ballots would be counted on a scantron machine? Perhaps a solid standard in such a case would be to look into the shading to see if you can see an even darker mark that resembles an X. And what about a vote in which one box has a X, but with squiggly lines through it and another box with a clean X , although the instructions say to ask a judge for a replacement ballot if you make a mistake? You could reasonably assume that the voter assumed that "making a mistake" meant making a big mistake of voting for the wrong party down through the ballot, not one mismarked X.
And though the instructions say to mark only one box for each contest, what if one box has a slight mark, such as a dot or one line, but the appropriate X is in another box?
And what about confusing ballots, like if the voter assumed that the candidates would be alphabetically listed, or that the two major party candidates would be listed first, but instead faced a randomly generated order of names? And what about people who forgot to vote for President yet vote straight party line elsewhere? Let's say it's all Democrat, but only a dot or a little diagonal, indicating an aborted vote, for the Democratic candidate for President. You might think that it was an almost vote, but the person had a change of heart, not having faith in the Democratic nominee but not wanting to vote for anyone else either, and, concluding that since there is not an actual X, that the vote would not be counted and it would be pointless to ask a judge for another ballot.
Yes, but on the other hand, it is patently unreasonable for a person to be so impulsive in the voting booth, esepecially with the option of getting a replacement ballot. Why would someone vote straight Democrat yet abort a Democratic vote for President? If there is so much as a mark of any kind, the only reasonable conclusion was that there was an intent on the part of the voter to vote for that candidate; the mark in question must be an X, even if it doesn't look like one.
In any case, the already established procedures of the county, or state law, should prevail. Unless, of course, those procedures would disqualify votes, which would be unfair.
And unfairness is the worst thing in the world. To be unfair is to be unjust, pure and simple. All those right-wingers who chime cliches like "personal responsiblity" or "setting a bad precedent" or "arbitrarily changing standards" or "read the damn instructions, stupid" or "changing the rules in the middle of the game." Well, you know what THOSE people are like. Those racist, sexist, homophobic, anti-choice, big-usiness people, they'll say anything, invoke any principle, to gain and hold power.
They aren't like us reasonable people. We are people of principle. And we say that every vote should count. And we trust the states and local jurisdictions to decide what that means. Even if we don't trust them with anything else.
About the Author:
James Leroy Wilson, the Executive Director of People for the American Way and also legal counsel for the National Council of Churches, once served as clerk for former Supreme Court Justice William Brennan.
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