WHAT COUNTS AS "VOTING": THE CORE OF THE FIGHT OVER FLORIDA'S ELECTION

By SHERRY F. COLB

Wednesday, Dec. 06, 2000

In this, the fourth week of Election Day 2000, the nation remains divided into two camps. One side feels that the Florida ballots have been properly tallied, that the majority of people who actually voted chose Governor Bush, and that the fair outcome of the election is therefore for Bush to become President. Those who take this view see the Vice President's court challenges as illegitimate attempts to steal what does not belong to him, and to construct a story that belies real world facts.

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The other side maintains, to the contrary, that a disproportionate number of Gore voters have had their votes illegitimately disregarded. If a thorough and accurate recount were only to be allowed to proceed, this side believes, the Vice President would prove to have won the popular vote in Florida and therefore, rightfully, the national election.

Aside from party loyalties, the two groups are divided by differing views on the question of whether a discrete (and relatively large) group of people, a majority of whom seem to be Democrats, did or did not vote. Thus, in an important sense, the dispute turns on the definition of "voting."

How Should We Define "Voting"?

What counts as voting? There are many easy cases. The person who goes to the polling place, punches the hole corresponding to her chosen candidate, and leaves the ballot with the appropriate collector quite obviously has voted. The person who drives by the polling place, on the other hand, because the line is too long, quite obviously has not voted. As with any contested definition, however, the difficulty emerges in cases that, unlike these two, do not obviously fall on either side of the line.

There are the "Buchanan/Gore voters": the people who meant to vote for Gore but inadvertently punched the Buchanan hole on the butterfly ballot. There are also the "chad dimplers": those people who failed to punch a hole in their respective ballots, but at least managed to create a detectable indentation. The controversy over each of these sets of voters (or attempted voters) raises the basic question, crucial to this election, of what it is to vote.

The Buchanan/Gore Voters

Take first the approximately 19,000 Buchanan/Gore voters in Palm Beach. These voters say that, due to the confusing nature of the butterfly ballot, they understandably mistook the hole that they punched to be designated for Gore, when in fact it was designated for Buchanan.

One might argue that their action should be taken as they intended it to be taken — as a vote for Gore. Alternatively, though, one might argue that these voters only attempted to vote for Gore; to punch the Buchanan hole, even due to a reasonable mistake, is to vote for Buchanan.

Which of these arguments is more persuasive? In thinking about the Buchanan/Gore voters, consider the following analogy. Jane approaches an Amtrak ticket counter to buy a one-way fare from Boston to Washington, D.C. She first asks for a ticket, and then hands the person behind the counter — who is wearing an agent's uniform — enough cash to cover the price. As it turns out, however, the person behind the counter is a thief who broke into the office and is only impersonating a ticket agent. Accordingly, the "agent" pockets Jane's money and sneaks out of the Amtrak office, never to be heard from again.

Did Jane buy a ticket? Jane has acted reasonably and done everything possible to pay Amtrak, but at the same time, no one from Amtrak has received any payment. This is a hard case because in some ways, Jane has paid Amtrak, but in other ways, she has not.

Similarly, the Buchanan/Gore voter says that many reasonable people in her position identified the Buchanan hole as the Gore hole. If the act of punching in the hole is subject to differing interpretations, the voter argues, then we should treat her interpretation as dispositive.

Bush supporters argue, on the other hand, that a vote for Gore ought to be defined as the punching of a hole in the Gore slot. However reasonable the voter's confusion, what matters are her actions, not her intentions, and her actions represent a vote for Buchanan under the rules.

Before we consider who has the better of the argument, let's consider the second example for a moment.

The Chad Dimplers

For the chad dimpler, the question is not "for whom did she vote?" but rather, "did she vote at all?" She apparently attempted to vote. However, if voting means punching a hole for a chosen candidate, then her failure to pierce the ballot constituted a failure to vote.

In contrast, if voting means the successful communication of a choice of candidate, then perhaps she did vote after all — for arguably we can make out from even the dimple her preference among the different candidates; the other candidates' punchholes, in contrast, are entirely undimpled.

For hard cases like this one (and like the case of the Buchanan/Gore voter), we try to set up default rules in advance. Rules permit us to decide how we will treat various ambiguous situations that might arise.

When I give my students a multiple-choice examination, for example, I use standardized "bubble sheets," on which a #2 pencil must be used to fill in the bubbles corresponding to the correct answers. I explain in the instructions that filling in two answer choice bubbles will automatically disqualify both answers. Selecting bubbles (a) and (c) for a particular question, for instance, would be the equivalent of selecting nothing. I also explain that a bubble must be filled in fully to count as an answer. This directive is meant to facilitate the scanning machine's reading of everyone's answer sheets.

Having set up the rules, however, I still cannot avoid encountering hard cases. There will be the student who fills in bubble (a), tries to erase that choice, and then fills in bubble (c). The scanning machine might disqualify the answer to that question, because there appear to be two choices marked in. Yet I will still feel some inclination to count (c) as the student's chosen answer, if I can tell from looking at the answer sheet that "(c)" is what the student meant to convey.

Similarly, to the extent that a dimpled chad seems very likely to signify an intent to vote for the candidate who corresponds to the dimpled punchhole — rather than, say, an intent not to vote at all, a suddenly reconsidered vote, or an involuntary muscle spasm — it might seem the fairest thing to count it as a vote. After all, the purpose of voting is the communication of a choice of candidate, not the display of one's skill as a hole-puncher.

If there is a dimple, then the lever was very likely pulled, and it was very likely pulled with an intent to vote. Moreover, common sense suggests that the dimple is more likely to result from an attempted vote, frustrated by a voter's or voting machine's weakness or error, than from a sudden decision not to vote at all.

For these reasons, the better argument, in my view, would allow the counting of even a merely dimpled chad.

Why the Buchanan/Gore Voter's Case Is More Problematic Than the Chad Dimpler's

This analysis brings us back to the Buchanan/Gore voter — whose case is significantly harder. The chad dimpler's intention is much clearer on the face of her ballot than the Buchanan/Gore voter's is on the face of hers. Indeed, the Buchanan/Gore voter's ballot looks exactly the same as the true Buchanan supporter's ballot. There is no way to distinguish between them.

Similarly, the purchaser who gives money to the impostor behind the Amtrak ticket counter has done nothing more for Amtrak than the person who buys donuts at the Krispy Kreme next door. Amtrak does not have access to either person's money, and therefore might rightly object to giving either one of them a ticket.

Even if we find the fairness claims of Buchanan/Gore voters compelling, it is hard to imagine an equitable way of administering a system in which we would count some ballots that indicate "Buchanan" as Gore votes, and other such ballots as Buchanan votes. It is not possible to retrieve the ballots of the particular individuals who made the reasonable error, since everyone votes anonymously. And even if retrieving the ballots were possible, allowing voters to express their intent, and choose whether to correct their error, after they already know an election's results, creates its own problems.

This administrative quandary thus distinguishes the Buchanan/Gore voter from the misled ticket purchaser, whose identity can be easily ascertained. It also distinguishes her from the chad dimpler. Whereas we can count the chad dimpler's vote simply by deciding to accept it as valid, accepting the validity of the Buchanan/Gore voter's claims will not automatically let us count her vote. Indeed, it might require us to invalidate the entire election (either in some counties or throughout the state of Florida) and hold another one in its stead.

By the same token, if my multiple choice answer sheets do not permit a reasonable person to distinguish between the bubble for indicating choice (a) and the bubble for indicating choice (c), the fairer solution might be to give the students a second exam rather than to ask each student which answers she meant to choose. Voters who "did well," of course — those who voted successfully, and are now happy with the results of the election — would, like my successful exam-takers, be unlikely to endorse this do-over solution.

In the final analysis, no one can provide a definition of "voting" that will satisfy everyone, particularly now that we know ahead of time which interpretation will help which candidate. It is also true that for future elections, the butterfly ballot and perhaps the hole-punching approach to voting may go the way of the woolly mammoth. Nonetheless, people will continue to puzzle over and debate the merits of this strange election long after the court contests have ended and a president is installed in the White House. As we have seen, the content of these debates will turn largely on how each one of us defines the simple yet momentous act of "voting."

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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