HD105 recount litigation

The recount in HD105 has not gotten started yet, but there's plenty of courtroom action in the meantime.

The crux of the Dallas County case involves straight-party voting on electronic voting machines. When someone votes a straight-party ticket but then also selects the name of a candidate within that party in a particular race, electronic machines "deselect" that candidate. If no other candidate is chosen, no vote is counted in that race.

On paper ballots, however, if someone votes a straight-party ticket and then selects a candidate from that party in a particular race, the vote for that candidate still counts. Democrats call this "emphasis voting" in both paper ballot and electronic machine voting.

Attorneys for the Democratic Party this week said the state's election law instructs officials to count those votes.

A memo from the Texas Secretary of State's Office to Dallas County elections officials last week said that deselected or emphasis votes from electronic machines should not be counted.

But an earlier memo to all Texas elections administrators and county clerks said to count emphasis votes. That October memo did not indicate whether state officials were referring to paper ballots, electronic voting machines or both.

On Monday, Republican attorneys accused Democrats of trying to use the courts to contest the election results when that can be done only in front of the state House - typically after a recount.

"It just goes to show why it's important to have this type of discussion after the ... [recount] rather than before," said Wade Emmert, who is representing Ms. Harper-Brown.

I actually think it would have been better to have had this argument before we started voting, so that everyone understood the rules going in and so that interested parties could try to better educate voters about the procedures, but it's too late for that now. I suspect what Mr. Emmert means is that this should be done during an election contest, when an appointed chairperson could interview the "emphasis voters" and try to ascertain their intent. We may yet endure that scenario.

Phillip and KT have been discussing the legal aspects of this. While I respect Phillip's arguments, I don't agree with them. I say this because for the first time in my life, I pushed the straight-ticket Democratic button this year. I then went to one specific race, and de-selected the Democratic candidate in that race. This was not an "emphasis" vote, it was a deliberate and intentional choice on my part to not cast a vote for that particular candidate. I don't know what kind of e-voting machines they use in Dallas, but here in Harris taking this action caused a screen to pop up informing me that I was causing that vote to go away. It's certainly possible that someone could dismiss that screen without understanding it, but it was there, and it was more than I had expected. That makes me highly skeptical of this argument. KT sees it the same way.

While I agree that this is a poor time for the Secretary of State to announce these different interpretations of the law for paper (absentee) ballots versus electronic ones, it seems to me there really is a fundamental difference in the two types of ballot. Checking the straight-ticket box on a paper ballot simply marks one box. I can totally understand how someone, seeing the vast swath of unchecked boxes that follow, could want to go to a particular race and literally or metaphorically underline a candidate they really like. With the eSlate, at least here in Harris, clicking the "straight ticket" button fills in the box of every candidate of that party on the ballot. An "emphasis vote" here, in addition to the aforementioned warning screen, blanks out the box for that candidate; the summary screen at the end also informs you that you made no selection in that race. I'm sorry, but the most charitable thing I could say about someone who did all that and walked away assuming they had voted for the person in question is that they are unobservant. I have a real hard time accepting the argument that they intended to cast a vote in the race given these conditions.

Now, this is not to say that we couldn't do a better job with e-voting machine interfaces. Maybe when you cast a straight-party vote, it should gray everything out, inform you that you have cast a vote for every member of that party on the ballot, then ask you if 1) you want to undo any of those votes, and 2) if you want to add votes in races where there wasn't a candidate from your party; if you answer "no" to each, it takes you straight to the finish line. That at least would clear up the intent issue once and for all. But I still don't think that intent is in question here, at least not based on what I've seen so far. Maybe the courtroom arguments will sway me, I don't know. I look forward to hearing them.

UPDATE: I mistakenly misrepresented KT's argument, which was the opposite of Phillip's. The post has been updated to reflect that.

Posted by Charles Kuffner on November 25, 2008 to Election 2008