- Could we have been so naive? Thousands of the country's
most credentialed lawyers flocked to Florida to guarantee a fair election.
Did we inadvertently miss an election debacle even greater than that of
2000 and negligently allow our client to concede?
- I am a Kerry supporter and a Bush critic. I went to Florida
because my mother, a Florida resident, asked me to help protect the right
of all citizens to vote and to ensure that all votes counted. I walked
the polling lines for early voting in Daytona Beach, distributing sample
ballots and helping citizens understand their rights. I tried to ensure
that poll workers obeyed the laws about provisional ballots and that ballots
were correctly fed through the optical scanner machines. And by my presence,
along with other Democratic lawyers, I lent an air of legitimacy to the
voting process, which, by and large, seemed fair enough.
- But one thing really troubled me: Who was checking to
make sure the data contained in the digital memory cards actually matched
the voters' intentions marked on the paper ballots? Could we take the accurate
counting of computer votes for granted, since the CEO of the leading voting
machine manufacturer promised to "deliver" Ohio's electoral votes
- At first, the question didn't matter, because I, like
most others, thought Kerry would win. In fact, I was shocked when the official
election results started coming in so different from historically reliable
exit poll results and my own gut sense of the results in Florida.
- But then the stories of voting irregularities poured
in. There was the Ohio county where a memory card showed several thousand
more votes for Bush than there were total votes cast. There was the machine
in North Carolina that "lost" several thousand votes. There were
the reports of several counties in Florida, all using optical scanner machines,
where democratic precincts voted overwhelmingly for Bush. There was the
realization that exit poll errors were correlated with the use of electronic
voting machines. There was the sense that the data from the precincts where
I had worked understated what felt like a Kerry landslide. And there were
the increasing allegations of machine vulnerability to hacking made public
by Blackboxvoting.org and others.
- And that's when I realized that I might have been an
unwitting accessory to fraud. Like every other Democrat, I had prepared
to avoid the problems of 2000 only to be blindsided by new problems in
2004. We had been so worried about the safekeeping of paper ballots that
we neglected the security of digital memory devices. We had been so worried
about voting law that we neglected voting technology. Most important, we
had been so worried about voter suppression in poor and minority areas
that we didn't pay attention to voter inflation in Republican areas.
- We should have had trained observers - computer scientists,
not lawyers! - verifying the integrity of polling data from machine upload
through the tabulation of countywide and statewide results. Somehow we
neglected the most vulnerable step in the vote-counting process, leaving
a gaping hole for error and fraud, casting in doubt the validity of election
results in many states.
- So what is to be done now? My client conceded the race
on the belief that the results were clear. The results are anything but
clear, however, and American democratic legitimacy requires an honest reappraisal
of the events in Florida and around the country. Three members of Congress
have already requested that the General Accounting Office conduct an investigation
into the troubling reports of problems with voting machines. The mainstream
press must immediately realize that this issue rises above partisanship
and demands attention. The time is now for voters from all states that
used electronic voting machines to request an audit of results and a manual
recount of ballots if possible.
- We have a duty as Americans to fix these problems for
the future and make sure there is a transparent and trustworthy voting
system. What's at stake is not merely the outcome of a close election;
what's at stake is our faith in democratic government and the rule of law.
- Ian H. Solomon is associate dean at the Yale Law School.