Politics & Policy

The Loser Who Won’t Concede

Democrat Christine Jennings's losing crusade.

Editor’s note — One of the first things the new Democratic-controlled House is doing today is to authorize an inquiry into the results of the House race in Florida’s 13th Congressional District. Although Republican Vern Buchanan was certified the winner after multiple recounts, Democrat Christine Jennings has refused to concede, and has asked the new House leadership to intervene. What’s going on here? Byron York looked into the question in the December 31, 2006, issue of National Review.

Do you remember the Election Crisis of 2006? In the weeks before November 7, Democrats laid the groundwork for widespread legal challenges to voting results, readying themselves to find irregularities, voter suppression, and outright fraud in precincts across America. Activists on the left established hotlines — call 866-OUR-VOTE! — and assembled platoons of volunteer lawyers. This time, they vowed, Republicans would not get away with stealing an election.

And then Democrats won. The hotlines went quiet. The lawyers went back to work. The crisis went away.

Which left some Capitol Hill Republicans who have worked with Democrats on so-called “election reform” issues feeling a little, well, cynical. “If they lose, they assume something is wrong with the system,” says one top Senate aide. “We lose, we say we lost. We’re not going to court. Had the shoe been on the other foot, they would have been suing until the end of time.”

As it turns out, however, there is one case in which Democrats are suing, at least for now. And even though it appears they are flat wrong about the facts of the case, their objections raise serious questions that need to be resolved before 2008.

The case involves the House race in Florida’s 13th Congressional District. Republican Vern Buchanan and Democrat Christine Jennings ran neck-and-neck throughout the campaign, and when it was all over on Election Night, Buchanan led Jennings by 364 votes out of about 238,000 votes cast.

Complicating the matter was the fact that there were about 18,000 undervotes in the race — that is, ballots in which voters cast their vote in other contests but did not vote in the Buchanan-Jennings race. Now, there is no requirement that a person vote in every race; voters can skip any race they choose. And undervotes are nothing new in the 13th District: In a previous House race, there had been 12,000 undervotes. Still, 18,000 was an unusually high number. And they were concentrated in one place — Sarasota County — although the district includes parts of five counties.

Some Democrats immediately jumped to the conclusion that the county’s paperless, touchscreen iVotronic voting machines, made by a company called Election Systems & Software, Inc., had malfunctioned — or, perhaps, been tampered with. If the machines had worked, Democrats claimed, Jennings would have been the clear winner. Sarasota County officials denied there was a problem, or at least a problem with the machines. “It’s not a mechanical issue,” said elections supervisor Kathy Dent. “We did not have any equipment failure.”

A machine recount began on Monday, November 13. As it started, Jennings filed suit, asking that the voting machines be locked up for future inspection. The recount added a few votes to Buchanan’s column, and at the end he led Jennings by 401 votes. Then there was a second, manual, recount, which ended with Buchanan up by 369. That was the final, official, result; on Monday, November 20, state officials certified Buchanan the winner.

But Jennings still refused to concede. On certification day, she filed a new lawsuit demanding another election, alleging that the recount total was wrong because thousands of votes were “not counted due to the pervasive malfunctioning of electronic voting machines.” A short time later, Jennings traveled to Washington for a House freshman orientation session — she even tagged along with a Buchanan staffer who was checking out office space — and acted to all the world as if she were the winner.

In late November, Florida election officials began yet another test, this time running a mock election on a few voting machines to see if that would produce results similar to the actual election. It did, with no serious malfunctions, pervasive or otherwise. Jennings reacted by adding Election Systems & Software, Inc., to her lawsuit. Finally, she vowed to ask the House of Representatives, when Democrats take control, to throw out the results of the election. In early December, she got the support of Democratic National Committee chairman Howard Dean, who called for a re-vote.

The only problem was, there was no evidence anything had gone wrong with the machines. As the wrangling went on, a group of three political scientists — James Honaker and Jeffrey Lewis of UCLA and Michael Herron of Dartmouth — began to look into the matter. They found no evidence of machine malfunction, either, and instead argued that the problem was most likely a confusing ballot design in Sarasota County’s machines. The ballot for the 13th District was on the same screen as that for the Florida governor’s race. The governor’s ballot was bigger, had more candidates, and took up most of the screen, the researchers found, and that most likely distracted voters’ eyes from the Buchanan-Jennings race.

That theory was supported by the fact that in other counties, the 13th District race was given its own screen — and there was not an unusually high number of undervotes. Also, in those other counties, when two other races were packed onto the same screen, there was an increased number of undervotes. “We conclude with what we believe is a simple and conservative implication of our main finding,” the authors wrote: “iVotronic touchscreen voting systems should not combine important races on the same voting page.”

It was as simple as that. There was no malfunction and no sabotage.

That conclusion is gaining increasing support among nearly all experts outside the Democratic party. But there is still no proof of the results that you can hold in your hands. And because of that, the controversy has put candidates, activists, election officials, and lawmakers nationwide into a quandary: After the Help America Vote Act of 2002, the government spent millions of dollars to help states install new, paperless, electronic voting machines, and those new systems have earned perhaps even less public confidence than the old paper-ballot systems. Even though Jennings’s claims were unfounded (and they were positively scientific compared with the paranoid ravings in some quarters of the Left about Diebold machines), people in both parties are still uncomfortable about votes cast with no paper record.

It’s a development filled with irony, since the electronic machines were rushed into use as a “reform” in the wake of the 2000 Florida recount. (And just to show that the political gods have a sense of humor, the Florida 13th race was to replace the outgoing Rep. Katherine Harris, the Left’s favorite villain from Bush/Gore days.) But it has led to a movement to take a step backward in technology, to abandon the electronic machines and go back to the old, paper ballot.

“On one side, we have vocal opponents of paperless electronic voting who are very well organized and make some excellent points backed by some pretty good studies,” says Dan Seligson, editor of the nonpartisan ElectionLine.org. “On the other side, we have election officials, who still believe very strongly that paperless voting is secure, reliable, and convenient. And in the middle are the lawmakers.”

Increasingly, it appears, the lawmakers are moving toward paper ballots. In 2007, the House will take up a bill by Democratic representative Rush Holt that would require voting machines to make a paper record. That could mean attaching a receipt printer to electronic machines, or it could mean a switch back to optical-scan paper ballots. Observers in both parties believe the Holt bill will likely pass the Democrat-controlled House, and probably emerge successfully in some form from the Democrat-controlled Senate. The question then will be whether Congress will give states money to replace the still-new electronic machines, just six years after handing out cash to buy them.

Whatever Congress decides, local election officials are already moving on their own to get rid of the electronic machines. Maryland, New Mexico, New Jersey, Connecticut, and several other states are in the process of changing their systems. Florida is looking at changes, too — and Sarasota County has already announced that it is switching to optical-scan/paper ballots for 2008. “What happened there will probably have an impact in legislatures far beyond Florida,” says Seligson.

Of course, even if changes are made, voting systems will still have problems. Electronic machines are certainly easy to use, and they eliminate questions of voter intent: You either selected this name or that one. They’re also highly accessible to the disabled. But problems can arise when printers are attached to the machines; like any other printers, they can jam or run out of ink. And with optical-scan ballots, a voter might pencil in a space too lightly, or do so outside the required area, which means election officials will be back to studying ballots to determine intent.

Still, for all the problems, experts are coming around to the idea that voting is one of those things — like the wooden baseball bat or the handwritten Post-it note — where the low-tech solution is the best. Yes, Democrats will still protest when they lose elections. But everyone will have more confidence when real, paper ballots determine the winner. Just ask Congressman Buchanan.


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