In a forceful op-ed in today's Roll Call, noted election law professor Rick Hasen argues that the courts are unlikely to provide a remedy to the FL-13 dispute, and that it's the obligation of Congress to step in. First, what went wrong?
What accounts for the high undervote rate in Sarasota County, in a hard-fought Congressional race in a swing district? Machine malfunction remains a possibility, but based on the evidence available thus far, the most likely culprit appears to be poor ballot design. In Sarasota County — but not in Charlotte County — the 13th district race appeared on the second electronic "page" of the electronic ballot, right at the top of the page above a larger heading for state races. A number of voters appeared to have missed the race because of its placement on the page.
A recent academic analysis by Laurin Frisina, Michael Herron, James Honaker and Jeffrey Lewis notes that in Charlotte County, the undervote rate in the state attorney general race was huge. In Charlotte — but not in Sarasota — the attorney general race was paired with another contest on the same electronic ballot page, mirroring the placement of the House race on the Sarasota County ballot. Fortunately for Floridians, the race for attorney general was not close.
A separate analysis recently completed by the Sarasota Herald-Tribune bolsters the poor ballot design hypothesis. Looking at every ballot cast in the county, the newspaper found that the people you’d most expect to vote in the House race — loyal party voters who voted Republican or Democrat throughout the ballot — were the ones most likely to have skipped voting in the race.
And here's what to do about it, argues Hasen:
The House can — and should — declare the seat vacant, requiring the seat to be filled by a special election. ...
Overturning an election in the courts is tough, absent proof of fraud or proof that legal votes were not counted.
But there is another option. The Constitution provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members ... ." The House has resolved disputed elections before. For two reasons, the House should declare the seat vacant, triggering a special election.
First, the House is not bound by the restrictive rules for ordering new elections that courts are. Assuming that the problem was poor ballot design, why should voters be victims of the design incompetence of election administrators? The fair thing to do — even if it is not legally compelled — is to hold a new election where everyone in the district gets to vote. ...
A side benefit will be that the controversy will focus attention on problems with election administration, and get Congress and the country thinking more about the problems with how we administer our elections....
[S]ome argue that it would be bad precedent to let the House make this decision on extralegal grounds. But just like the House makes a political judgment as to what constitutes grounds for impeachment, it can make decisions about new elections on a political basis as well. A Democratic House’s decision to grant a revote in these circumstances is a lot less likely to contribute to partisanship in Congress than was the Republican House’s decision to impeach then-President Bill Clinton.
More importantly, such political judgments are self-limiting. If the Democratic House started overturning election results for no good reason, voters would see such moves as illegitimate and vote the Democrats out of office.
Noted Democratic election law attorney Bob Bauer thinks such talk is a bit premature, and Jennings has until December 20 to ask the Committee on House Administration to investigate.
I will confess some doubt as to whether one of the first moves of the new Democratic majority ought to be involvement in settling this election, but that's an argument about political pragmatism and not the merits. It seems pretty clear that the results recorded by the machines do not reflect the voters' intent, so what are we to do about it?
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