A point made by the Chief Justice, and quoted by me in another thread, deserves a thread of its own - because, as I see it, we don’t yet have nearly enough election threads.
We’ve spent much time talking about hanging chads, dimpled chads, looking at the rest of the ballot to see a pattern of Democratic voting, and other techniques designed to determine “the true intent of the voter.”
However, Florida law requires that the following notice appear at all polling places using punch ballots: “AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.”
Forget the federal race – even if this were a vote for dogcatcher… does a voter who fails to follow that instruction deserve to have his vote counted?
Or, to phrase it slightly less inflammatorily… should a voter who fails to follow the above instruction be heard to later complain about being disenfranchised?
No. When you vote, you must follow the instructions for that method. That means:
If you have a “chad” type ballot, you must punch it through. Don’t punch it partially, don’t color it in, don’t write “Bush” or “Gore” on it and don’t fold it via Origami into the letter B or G. Sure, if you did any of those things we might be able to tell who your candidate was, but that doesn’t qualify as a vote in that precint.
Similarly, if you have a paper ballot and have to put an “X” in the box, then do that. Don’t circle your candidate’s name, don’t write it at the top of the paper, don’t put a “Gore/Leiberman” sticker on the ballot. Simply follow the instructions.
Part of the problem with the punch-card style ballot, or specifically the butterfly ballots (I’ve used them in the past), is that when you pull the card out of the slot, aside from looking for hanging chads, you have no way of checking your work. The holes, absent the context of the ballot book (not the card itself), show no inidication of what candidate or even what office they correspond with.
When I had to use those ballots, I made sure they were damn good and punched.
So when the sign says If you are black, illiterate, stupid, or I don’t like you, just put your ballot in the trash can, turn around, and leave, then voters have to follow those instructions?
Voting is not a literacy test. It is not a test to see if people can follow instructions. The means of voting is entirely subordinate to the end of expressing the will of the people. It is a shame that so many people are forgetting this in their fervor for one side or another.
But Maeglin, with every right comes a responsibility as well. Just because you have the right to free speech doesn’t mean you can slander or libel or commit fraud- you still have a responsibility for the consequences of your words. Likewise, all voters have the right to vote, but must take the responsibility to know how to vote correctly.
Which is a fair question for an ethics discussion. Is that what you intended this thread to be? If so, please disregard my comments below.
I’m assuming, since you credit Chief Justice Rehnquist for the thread starter, that your question is more along the lines of “As a point of election law, should it make a difference that clear instructions are posted in all Florida polling places where punch card ballots are used?”
My short answer to that question is: No; this makes no difference.
Longer answer: It’s a matter of degree. We’re talking about a fundamental right, which is exercised through a wide variety of different voting apparatus. Should the failure of a voter to understand instructions regarding the particular apparatus used be enough to disenfranchise that voter?
We could apply the question to other rights, to illustrate the problem here. Let’s say I’m arrested during a police sting operation for soliciting a sex act (just f’rinstance, m’kay?). I’m arrested and read my rights. When I’m asked if I understand those rights, I answer “Huh?” and proceed to answer every question put to me without benefit of attorney.
Have I given up my right to remain silent? Have the courts ever dealt with a similar case?
What if I answered “Yes,” but I really didn’t understand those rights when I waived them. Don’t I still have the right to have an attorney present during questioning? Have the courts remedied such a case in the past?
Is this not an analogous situation? We’re dealing with constitutionally guaranteed rights in both cases.
A slight hijack…but are you saying that when a police officer advises the detainee that “anything he says can and will be used against him” is just pretty much useless because the defendant can use this excuse later in court proceedings.
I tried looking up some references on Miranda right cases citing this, but I am a far stretch from a court clerk and did not have the patience to read all that I found.
To me, it seems that your analogy lacks something. When somebody is arrested and does not understand his Miranda rights being read to him, he has an opportunity to advise the police officer that he did not understand. (I believe that’s the last thing the officer tells the detainee.) Thus, protecting his rights, even if he speaks.
Just the same, the voter has the opportunity to change/fix his ballot at the polling place if he does not understand it or thinks it might be wrong.
A slight hijack…are you saying that when a police officer advises the detainee that “anything he says can and will be used against him” is just pretty much useless because the defendant can use this excuse later in court proceedings?
I tried looking up some references on Miranda right cases citing this, but I am a far stretch from a court clerk and did not have the patience to read all that I found.
At any rate, what it seems like to me is that your analogy lacks something. When somebody is arrested and does not understand his Miranda rights being read to him, he has an opportunity to advise the police officer that he did not understand. (I believe that’s the last thing the officer tells the detainee.) Thus, protecting his rights, even if he speaks.
Just the same, the voter has the opportunity to change/fix his ballot at the polling place if he does not understand it or thinks it might be wrong.
This is, of course, absolutely true. I think that the rhetoric on both sides of this issue is convincing. Yet there is a fine line between responsibility and obstruction, intentional or otherwise. John Corrado is absolutely correct (like he needs me to say it) that we do have a responsibility not to use our freedom of speech in libelous or slanderous ways. However, we do not have to file forms in triplicate every time we do wish to use it. Just because a particular establishment decides that a voter should be responsible for A approving the ballot beforehand, B knowing how to use an irritating and complicated piece of equipment and C making sure the chads are punched through does not mean that these responsibilities are fair or reasonable.
For example, a restaurant may impose a “policy” of including a gratuity for parties of 6 or more, but that in no way under the law obligates diners to comply. This is example is, of course, merely illustrative. The board of elections can decide that the above is the set of voter responsibilities, but they surely do not have the last word. When a huge number of voters turns around and rebukes these responsibilities, I think it is time to reevaluate them. I don’t think hiding behind procedure and protocol is a fair way to deal with the obvious fact that a lot of people are dissatisfied with the current set of responsibilities. I think you would be hard pressed to argue that they did not somehow undermine the will of an awful lot of people.
Whether the remedy would do even more damage is an entirely separate matter.
jeel, good questions, but I’d like Bricker to respond to them, as I posed my own questions knowing that he could answer them better than I. As for the last sentence in your post, please read Shayna’s explanation.
Coming from Virginia, where we use push-button machines that electronically capture votes, I have never come face-to-face with the sorts of voting methods discussed above. I am therefore tempted to bow to Shayna’s rather compelling description of the punchcard’s inaccuracies - made stronger, I might add, by the obvious fact that there are a considerable number of spoiled under- or over-votes in Florida.
Although I asked a question in the OP without proposing an answer, I will now do so: in my view, a ballot system must be clearly comprehensible to a reasonable person. From Shayna’s description, it sounds like the punch-card ballot was not. (For the record, by the way, I found the “butterfly” ballot in Palm Beach County to be comprehensible to a reasonable person insofar as the arrows pointing to a particular candidate. If it also involved punching through to a card, it may well have failed on that score.)
With all the problems with punched cards, it occurs to me that earlier elections must have also had large numbers of spoiled ballots. And it amazes me that no one’s raised this issue before now. To my way of thinking, this was clearly an accident waiting to happen.
Why was nothing done?
If you answer, “Huh?” the cops may not question you. Waiver of your Miranda rights must be affirmative, and not ambiguous. Numerous court cases have developed this standard, and if the cops question you anyway, they may not ultimately use the substance of your conversation against you later.
If, however, you answer, “Yes,” even though you don’t really understand, then the cops are permitted to question you. Although you still have the right to have an attorney present, you must invoke that right unambiguously. You are free to argue to a judge later on that you didn’t really understand the warnings, and the judge, if he believes you, may suppress your conversations with police. But that’s an uphill battle - if you say yes, you are presumed to mean yes, and you have a heavy burden of demonstrating that you really didn’t understand what it all meant.
I’m not sure this is analogous to the vote business, though. When I was born, and until I was six years old, some people between eighteen and twenty-one were denied the “right” to vote. Convicted felons in many states may not vote, while in other states, they can. The right to vote has never, in other words, been viewed as applying nearly as widely as the rights to avoid self-incrimination, which applies to all persons of all ages at all times.
Rick, could you explain the ‘law’ that requires the posting of the language in your original post? I’ve done a search of Florida statutes, and can’t find any such statutory provision, and I note that the opinion of the Chief Justice failed to establish that the Secretary of State had established this as a rule for ‘legal’ votes even by regulation. But I’m not willing to accept that I can’t be wrong, or that I missed the law in question.
The cite in his concurrence, which I’m sure you’ve read as well as I, is “Instructions to Voters, quoted in Touchston v. McDermott, 2000 WL 1781942.”
I don’t recognize that case notation style at all, and I’m not in a position right now to hit Lexis and check the case name. In reading the Rehnquist opinion carefully, I note that it says: “In precincts using punch-card ballots, voters are instructed to punch out the ballot cleanly:” and then goes on to list the text I quoted.
In short, it was probably presumptious of me to conclude that Florida law requires the notice… rather a disappopinting conclusion, given the emphasis the CJ placed on the language in his opinion.
I’m sure you feel the same about absentee ballots that don’t have all the clearly-required information, such as voter ID number, signature, witness, and postmark, even if they come from overseas military personnel.
Yes, the whole procedure in ALL states needs to be looked at carefully and with extreme skepticism. Punch cards (which were banned due to excessive inaccuracy in my state) are on the way out, I’m sure, but that’s just one example.
The cite is to Westlaw, since the case is way too new to be published in a reporter (Dec. 6, 2000). The text you cite is from Footnote 19 in that case, but no statute is cited that mandates the language. Confound that Chief Justice fella and his misleading ways!
Yes… mostly. An absentee ballot, even if from overseas military personnel, that clearly requires voter ID number, signature, and witnesses, and fails to provide them, ought, in my view, to be rejected.
However, the postmark issue is another story. The military voter has no reasonable way of ensuring his ballot is postmarked, since this happens after it leaves his control. If it’s true, as I have heard mumbled, that military mail is often not postmarked, then the requirement that all absentee ballots be postmarked is onerous, and ought to be changed; ballots lacking this qualification should be accepted.
YOu are forgetting the really complex stuff: Registering to vote, finding out wher ethe voting location is, planning to go there, actually hauling your carcass to the voting booth, learning how to read…
Even my wife, a woman with 10 years of post high school eductaion could not quite get it together to register (she is a Dem after all ). Is all of that any less “reasonable” than having to stick a stick through a hole? I think we have to assume a certain baseline competency of the voter. IF you can’t figure out the ballot, you are below baseline. Until we have nationwide ESP machines, we will have to expect people to be able to perform some simple functions.
FWIW, the inventor of the vote-o-matic sent a machine and some ballots to Rush Limbaugh and challenged him to create a dimpled chad. Even trying to intentionally create a dimple, his staff couldn’t do it. Not an unbiased sourse, but that the invenotor of the machine does not believe it can be done says something.
). Is all of that any less “reasonable” than having to stick a stick through a hole? I think we have to assume a certain baseline competency of the voter. IF you can’t figure out the ballot, you are below baseline. Until we have nationwide ESP machines, we will have to expect people to be able to perform some simple functions.