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As today's Morning Election Digest on the VA-AG race points out, we may have some sort of manual recount of optically scanned ballots in that race.  I'm not familiar enough with the new law to know whether a manual review of every ballot in every county is something either side can demand in a recount, or whether that side would have to show some cause to do a full hand count.  But whatever the rules in this specific case, in general we shouldn't let what happened in FL 2000 create an unthinking enthusiasm for hand counting in every case.

This AG race is an excellent example of the problem of hand counting a hyper-close race.  If you look at the VA state website cited in the item for the AG results, then go to local results, it will tell you that Fairfax County reported 303,083 votes in the AG race.  So far so good.  But go to the Fairfax County website, and they give you this crucial extra bit of information, that total votes in Fairfax County were 311,429.  To be sure, many of those 8,000 "missing" votes are due to drop-off, the fact that some people only go to the polls to vote for the top line race/s, and don't bother voting further down the line.  But the state site will tell you that only 306,161 voters from Fairfax voted in the governor's race.  So that's over 5,000 votes unaccounted for.

To be sure, some of the 5,000 are folks who came in and voted for some race further down the line, but skipped the governor's race.  Maybe they hate McAuliffe.  But most of the 5,000 are almost certainly people who thought they voted in the governor's race, but made a mark the optical scanner didn't register.  The scanner will kick your ballot back if you vote more than one candidate in any race, or if you don't vote for anyone in any race, but it accepts your ballot if it can't read any vote in a given race, because the assumption is that some voters don't want to vote all the races.

Now, the AG race has over 8,000 "missing" voters.  At least 3,000 of those are almost certainly legitimate drop-off, voters who came to vote in the governor's race, but didn't care to vote for either AG candidate.  But that still leaves approx. 5,000 ballots in Fairfax County on which the voter made some sort of mark, but that mark didn't meet the optical scanners' criteria for a vote that could be counted.

Bottom line, if there's a hand recount, in Fairfax County alone, there are probably close to 5,000 ballots that humans are going to have to interpret because the scanner couldn't call them.  We can only hope that the optical scanners were 100% accurate when they did make a call, or that's who knows how many more votes up in the air.

Now, you may think that's all to the good, because you've got FL 2000 on the brain and imagine that more people who failed to mark their ballots to optical scanner standards were probably our voters, therefore our side will do even better if at least some of those votes can be legitimately counted after human inspection.  But a lot has changed in 13 years, and the VA is not FL.  People more likely to have Alzheimer's are now more likely to have intended to vote for Obenshain, and worse, the humans who are going to be examining their ballots out in the deep red boonies are not going to have nearly as much scrutiny as folks in Fairfax County looking over the ballots.

The paper audit trail is very important as a safeguard against intentional or accidental systematic error.  Computerized counting and tabulating is necessary to get a precise result, but such systems are inherently "black boxes", you can't see what's going on inside them, and they are therefore vulnerable to large, systematic errors.  And, of course, the outcomes of elections are so important, that we have to worry a lot about systematic errors that aren't really errors, but crimes.

But the paper audit trail is like Kryptonite to a close election.  Humans can't tally 2 million of any sort of object to the point that a variance of 164 means anything.  Then throw in the subjectivity of human interpretation of the marks on the ballots, and you can simply forget about the resulting count as any sort of indicator of which candidate actually had more votes cast for them.

FL 2000 was both hyper-close, and it had all sorts of probable systematic sources of error -- the butterfly ballots and "Jews for Hitler", defective and overloaded punch machines, etc., etc.  A hand recount of counties where there were these systematic problems was reasonable, and would have yielded a more accurate count.  Such a recount might have put Gore far enough ahead that the margin would have been convincing as something beyond a variance caused by imprecision of counting, so it's reasonable to think that should have happened in FL 2000.

VA-AG 2013 is not FL 2000.  There is no theory of a potential systematic error that either side is claiming.  There were only five races on the ballot, and only the governor, and, in some cases, the local Delegate race, had more than two candidates.  The result was a very clear ballot, with all races clearly demarcated off in their own space, so that we didn't have either butterflies or any reason to have Jews voting for Hitler by mistake.  There were no ballot punch machines that got clogged preferentially in blue precincts to skew the results systematically in one direction.  

Counting the ballots by hand, in this race, is just going to open the gates of Random Drift Hell.

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Comment Preferences

  •  Tip Jar (1+ / 0-)
    Recommended by:
    delver

    The states must be abolished.

    by gtomkins on Thu Nov 14, 2013 at 11:11:13 AM PST

  •  huh? (2+ / 0-)
    Recommended by:
    Eyesbright, gtomkins
    People more likely to have Alzheimer's are now more likely to have intended to vote for Obenshain,
    If you mean that Obenshain votes may have been disproportionately misinterpreted by the scanners, I am willing to take my chances with that. I don't expect it, but I can live with it if true.
    and worse, the humans who are going to be examining their ballots out in the deep red boonies are not going to have nearly as much scrutiny as folks in Fairfax County looking over the ballots.
    I think you'll find that Virginia Democrats are not incapable of vigilance.

    Minnesota did this in 2008. We've seen that it can work. In particular, we've seen that the changes are explainable as bona fide corrections consistent with voter intent, not partisan ploys.

    By the way, I don't think there is any prospect of a 100% hand recount of the ballots. Virginia law is clear that the ballots should be retabulated, and only ballots that the scanner doesn't count should be scrutinized manually. It is conceivable that a court could order otherwise, but I'm not sure what the basis would be.

    "I am not sure how we got here, but then, I am not really sure where we are." -Susan from 29

    by HudsonValleyMark on Thu Nov 14, 2013 at 11:40:41 AM PST

    •  Where there are any Ds on the ground (1+ / 0-)
      Recommended by:
      HudsonValleyMark

      "I think you'll find that Virginia Democrats are not incapable of vigilance."

      But there have to be some VA Ds around to exercise that vigilance.  Their big counties, like Chesterfield for example, aren't the big problem.  The big problem is the dozens of little counties they have out in the boonies that are small enough to be run by a good 'ol boy network, and none of the good 'ol boys are Ds.

      As a technical question, how do they identify the ballots the scanner didn't count for the AG race?  At the time of voting, the scanners reject misvotes, but accept undervotes.  The election officers are then supposed to spoil the misvoted ballot and hand the voter a clean ballot, explaining what constitutes a misvote so that the voter won't do that again.  Is there some other function I'm not aware of by which the scanner identifies that a particular ballot has an undervote, so that those can be hand counted?

      Again. my understanding of what happened in the McDonell-Deeds recount is that there was no hand counting of anything and it was really just a retabulation.  But My understanding is that the lection law was changed to allow hand recounting in some setting, but I'm not clear what the grounds would have to be.  But if what I think you're saying is right, and the only ballots to be ahnd-counted would be the ones the scanner refused to read, then my understanding is that that's a null set and empty universe, because those ballots all got spoiled.

      The states must be abolished.

      by gtomkins on Thu Nov 14, 2013 at 03:23:29 PM PST

      [ Parent ]

      •  here's what I've got (1+ / 0-)
        Recommended by:
        gtomkins
        The big problem is the dozens of little counties they have out in the boonies that are small enough to be run by a good 'ol boy network, and none of the good 'ol boys are Ds.
        Virginia election law provides that both major parties have to be represented on the electoral boards and among the election officers "as far as practicable." I don't know whether there is a county that says straight-faced that they just couldn't find a Democrat who would serve, but I bet there aren't many. Also, I don't think it's all that easy subtly to steal a few hundred votes in the recount phase.
        As a technical question, how do they identify the ballots the scanner didn't count for the AG race?
        During the retabulation, the retab scanners are configured to separate ballots that it adjudicates as undervotes, overvotes, or spoiled, and then those are inspected by hand. For some reason right now I'm having trouble linking to Virginia code, but that's the flavor of it.

        Note that we may be using "retabulation" in different ways.

        Again. my understanding of what happened in the McDonell-Deeds recount is that there was no hand counting of anything and it was really just a retabulation.  But My understanding is that the lection law was changed to allow hand recounting in some setting, but I'm not clear what the grounds would have to be....
        I'm pretty sure that election law at that time didn't even allow the op-scan ballots to be rescan: for them, it was basically a re-recanvass of the result tapes. I'll try to check that after dinner. At any rate, it's true that the law changed; some op-scan ballots will be adjudicated by hand, as I said above, and any ballots originally hand-counted will be hand-recounted.

        Oh, even though the Virginia site isn't working right now, Citizens for Election Integrity Minnesota has a pretty nifty summary.

        "I am not sure how we got here, but then, I am not really sure where we are." -Susan from 29

        by HudsonValleyMark on Thu Nov 14, 2013 at 04:43:38 PM PST

        [ Parent ]

        •  There are Ds and there are Ds (1+ / 0-)
          Recommended by:
          HudsonValleyMark

          Sure, there are all sorts of provisions for pairing D election officials with R on a one for one basis.  But here in Fairfax, we have trouble finding enough real Rs to fill half the slots at our 241 polling places.  Plenty of people who vote R.  Plenty of blowhards who talk R big, but not lots of Rs willing to do the work of being an elections officer.  Not enough Ds either, for that matter.

          Now, the chief is supposed to be an R when the governor is R, but there just aren't enough actual Rs with enough experience.  So people volunteer to be Rs.  And if an actual R has gotten used to working at one precinct and likes it, but they're full up with their quota of Rs already, he magically becomes a D.  The labels are pretty pro forma.

          In Fairfax, that's not a big deal, and there's always enough actual R and actual D folks in the room, between the election officials and observers, that no, no one could get away with anything.  But out in the boonies, I'm not so sure.  Not sure that there's an actual D the good ol' boys would let in the room, at least not a D willing to get the local power structure all riled up.

          And it's not as if it would take blatant acts of theft to give this thing to Obenshain, at least if you're right about the scanners being able to ID the undercount ballots.  If it comes to adjudicating ballots the scanners counted as undervotes, deciding what the voter might have intended by this mark or the other on the ballot, is going to be subjective.  Based on the numbers I cited for Fairfax, that over 8,000 undervoted ballots were cast for AG, out of 303,000 ballots voted that day, that's nearly 3% of ballots that would have to be adjudicated, examined by officials looking for some indicator that the voter actually did intend to vote Herring or Obenshain, but the scanner just couldn't decide.  They aren't going to have to outright steal anything out there in Bedford County to give this thing to Obenshain, they're just going to have to see marks on a ballot a bit more creatively than you or I might, and even that only often enough to turn less than 1% of the 3% undervotes.  3% of 2 million is 60,000, and they only need a net of 164.  Piece of cake.

          Again, I've just been around when the scanners are in use on election day.  I know that in that setting they aren't programmed to spit back undervotes (unless a voter doesn't vote in any race, those they spit back along with the overvotes), or give any indication that that particular ballot didn't vote all the races.  If they do have that capability, or if the ballots are to be put though other scanners that have that capability, that would allow the identification of the ballots with those missing 8,000 votes (in Fairfax, 60,000 statewide if the state has the same rate as Fairfax)), and thus a hand count of the undervotes, looking for the ballots that show some intention to vote for AG, just not expressed in a way the scanner could read.

          It seems to me if this statement of yours is the case,

          "retab scanners are configured to separate ballots that it adjudicates as undervotes, overvotes, or spoiled, and then those are inspected by hand."

          then we're in for my opening the gates of Random Walk Hell scenario.  That's 60,000 adjudications of undervotes we're up for.  The Commonwealth ought to stage the show at Cold Harbor, if that's what we're in for.

          The states must be abolished.

          by gtomkins on Thu Nov 14, 2013 at 08:37:19 PM PST

          [ Parent ]

          •  a few things (1+ / 0-)
            Recommended by:
            gtomkins

            First, reviewing overvotes and undervotes is a much smaller job than working the polls. I don't know how many counties in the boonies even voted on paper ballots that they can recount -- I think that, literally, most of the paper ballots were cast in Fairfax. But setting that aside, of the 8,000 or 9,000 votes that the scanners will isolate in Fairfax, the vast majority of them will be simply blank -- uncontestable undervotes. The hard cases will be a tiny fraction.

            Remember that in Minnesota, one canvassing board worked through every contested ballot in the state in three days, and that was with a phenomenal attention to making the process observable to anyone watching the stream. At the end of that time, they had cast only 60 non-unanimous votes. Yes, there is irreducible subjectivity, but most ballots just aren't that hard to adjudicate in a manner that reasonable observers agree is consistent with the counting standards. If the Republicans on the board had set out to swing enough votes to Coleman, it would have been pretty obvious, because there weren't all that many marginal votes to begin with. The votes that Franken and Coleman picked up during the recount mostly turned out not to be all that controversial.

            Now, I'm not blithely assuming that Virginia will execute a process as gosh-darn undeniably fair as Minnesota's. (Of course no process is undeniably fair, but since that recount, the We Wuz Robbed rants seem to be very disproportionately about Bad People voting in the Twin Cities, not about the recount itself.) But I would feel awful arguing against a manual review of ballots on the grounds that it can't be done fairly in Virginia.

            Certainly election day scanners generally aren't programmed to spit out undervotes: too many undervotes, too much confusion. (I think some jurisdiction may have done it at least once, but....)

            then we're in for my opening the gates of Random Walk Hell scenario
            That being a random walk with fraudulent drift, yes? ;)

            I think the Minnesota experience proves that this sort of thing can be done very well, and also provides some pointers about best practices. (I also think the math doesn't favor hypothetical disingenuous good old boys in the boonies.) I'm not sitting back drinking sangria here, but I think the recount is eminently doable.

            "I am not sure how we got here, but then, I am not really sure where we are." -Susan from 29

            by HudsonValleyMark on Fri Nov 15, 2013 at 04:51:11 AM PST

            [ Parent ]

            •  Those optical scanners (0+ / 0-)

              I'm not sure that anyone has ever done this particular test on the optical scanners that at least Fairfax used, a quantitative test of how well they do interpreting marks on paper.

              I observed part of the process the Fairfax Board of Elections used when they certified the scanners (which they had bought used) for acceptance several years ago.  They only tested their ability to read ballots correctly with test ballots that had the little ovals inked in by machine.   And they never ran quantitative testing looking at how often the scanners couldn't even do that successfully, even though I was told they sometimes failed even at that.  The certification testing was solely qualitative: would the machine correctly read vote for one candidate vs the other, vote for one candidate vs overvote, vote vs no vote for a particular race, would it read correctly no matter the orientation in which the ballot was inserted in the scanner.  If a machine flunked such a qualitative test, which I was told only happened rarely, they tested it a few more times to see if it would perform correctly, and assumed that there must have been some human error in the flunked trial if the machine did perform correctly on the "do-overs".  They only rejected machines if they reproducibly flunked a qualitative test.

              What could go wrong?

              Well, over 5,000 undervotes for governor, the top line race, out of 303,000 votes in Fairfax, suggests that the quantitative testing that it is not clear to me that anyone has ever run on these machines, would have shown an almost 2% rate of an inability to read ballots inked in by actual humans.  Sure, on inspection, it might be found that the vast majority of the 5,000 Fairfax undervotes for governor, and the 8,000 undervotes for AG, are unambiguously blank in the areas of the ballot for those races.  Maybe there really is a dynamic at play whereby that many people went to the polls to vote for LG or the school board issue, but refused to vote for governor, but I can't say I've ever seen that big a drop off for the topline race back when Fairfax went mainly with touch screens, which tell the voter in the last screen how he or she had voted, giving them a chance to correct if they had gotten it wrong.  And even if most of these undervotes were by voter intention, you have to look at all 8,000 if you're going to look at any, to make that discrimination.

              I don't know how much the rural counties used scanners vs touch screen this year.  I only know much about Fairfax.  Sure, touch screen votes are locked in, with no human oversight of the mechanical process possible.  That's why people tend to object to them, because of the possibility of systematic, biased, error.  But even if only Fairfax used scanners, and therefore only 8,000 AG undervotes need to be hand counted, that still puts the race within 2% of that 8,000.

              You're right, my point is not simply about pure random drift, that in these hyper-close elections, hand-counting is just going to find random errors this way and that, which are incredibly small, but still big enough to tip such a hyper-close election.  Part of my point is that in such a hyper-close situation, you put unreasonably large pressure on the humans involved in judging these ballots to shape reality to conform to their desired outcome, and the hyper-closeness of the race means that there is no objective check on such tendencies.  

              If the fine folks on the Bedford County Electoral Board determine that 90% of their undervotes (assuming they used scanners and therefore have undervotes to adjudicate) were actually people intending to vote Obenshain, on what basis would a judge be able to refuse to take their word for it (assuming this goes before a judge who wants to doubt such a result)?  2/3 of the votes up there were for Obenshain anyway, and it isn't at all unreasonable to imagine, based on polling data, that Obenshain voters were older, therefore more likely to have cognitive or vision or motor deficits interfering with their ability to make marks the scanner could read, therefore likely to be overrepresented in these rescued undervotes.

              So sure, if it's only the Fairfax 8,000, the Fairfax Electoral Board is not likely to push the outcome 2% in Obenshain's direction, both because Fairfax went almost 2:1 for Herring, and because the adjudication process in Fairfax is going to be hyper-scrutinized.  But if scanners were widely used throughout the state, and the rest of the state has the Fairfax rate of AG undervotes, we're talking 55,000 undervotes to adjudicate, and in a state that was flat 1:1 Herring vs Obenshain, with a lot of that counting done in deep red places that are not going to get hyper-scrutiny of their process.

              What could go wrong?

              The states must be abolished.

              by gtomkins on Fri Nov 15, 2013 at 12:31:28 PM PST

              [ Parent ]

              •  well... (1+ / 0-)
                Recommended by:
                gtomkins
                Well, over 5,000 undervotes for governor, the top line race, out of 303,000 votes in Fairfax, suggests that the quantitative testing that it is not clear to me that anyone has ever run on these machines, would have shown an almost 2% rate of an inability to read ballots inked in by actual humans.
                If the scanners are failing to read thousands of ballots that actually are marked -- or if we even think that is possible -- then we urgently need a recount (or a good audit, at least, but Virginia law doesn't provide for audits). I'll be surprised if the scanners are actually performing that badly, but I don't advocate blind reliance on the scanners.
                If the fine folks on the Bedford County Electoral Board determine that 90% of their undervotes (assuming they used scanners and therefore have undervotes to adjudicate) were actually people intending to vote Obenshain, on what basis would a judge be able to refuse to take their word for it (assuming this goes before a judge who wants to doubt such a result)?
                That hypothetical is so heavy-laden, I'm not sure where to start. Unless the fine folks of Bedford County actually alter the ballots, their implausible assertion will be contradicted by physical evidence. (To be clear, it might be plausible that 90% of the undervotes that should be counted as votes go to Obenshain -- but ordinarily that would be a substantially smaller base.) Even if they do alter the ballots, if they can't come up with a plausible cover story for this result, they could be facing felony charges. If we can't use the paper ballots in this circumstance, it isn't obvious what circumstance we can use them in.
                with a lot of that counting done in deep red places that are not going to get hyper-scrutiny of their process.
                I don't think you have any basis for assuming that.

                "I am not sure how we got here, but then, I am not really sure where we are." -Susan from 29

                by HudsonValleyMark on Fri Nov 15, 2013 at 02:32:02 PM PST

                [ Parent ]

                •  Political machines have not gone extinct (0+ / 0-)

                  Chicago still has the rep, but probably nowadays has cleaner elections than the median for the country.  But small, local, machines still exist out in the boonies.  Sure, "common knowledge" cannot be the basis for anything you ask a judge to order, but the machines are still out there.  They existed, quite out in the open, for centuries, despite laws on the books that theoretically made felonies out of quite a bit of what they did in respect to elections.  

                  Now, I should have phrased what I said about Bedford County a bit more carefully.  I should have talked about their Electoral Board finding that 90% of their unintentional undervotes were for Obenshain.  

                  I think we agree that some of the undervotes are intentional, what are also sometimes called "drop-off" votes, but some are unintentional, people who thought they had voted for one candidate or the other, but didn't do anything to the ballot that the machine recognized as a vote.  A clear intentional drop-off/undervote would have no mark -- ink, depression, indentation, anything -- anywhere near the AG area of the ballot.  Unintended undervotes would  be the alternative, there is some sort of mark somewhere near the AG ovals.

                  Now, where we differ is that you seem very confident that just about all the undervotes will prove to be intentional, and the ones needing any adjudication beyond the unambiguous and completely objective determination that there are no marks anywhere near the ovals, will be a very small number.  I don't claim to know whether or not the scanners have ever had quantitative testing, on marks made on ballots by real people, that would justify such confidence.  Do you?

                  And if there really are tens of thousands of ballots out there that will have to be adjudicated, ballots that have some kind of mark somewhere near the ovals, yes, I think that the adjudication is going to be qualitatively different in Bedford vs Fairfax.  It doesn't even have to get anywhere close to actual intentional fraud, if there are enough of these ballots that need adjudication, to give this to Obenshain.  It will come down to what criteria the adjudicators use to rescue a ballot from the intentional undervote category to put it in the unintentional category, and then what criteria to award the vote to one candidate over the other.  I really don't think that those criteria will ever be reducible to anything that hundreds of adjudicators spread over the Commonwealth could ever, with the best will in the world, apply objectively and reproducibly.  And please, someone who believes in his heart that Jesus Christ himself has anointed Obenshain as one of the kings the Commonwealth needs ruling over it, is going to see things that you and I can't see on those pieces of paper, even while remaining 100% pure of heart.

                  But, no, I don't think it at all ridiculous to think there is an excellent chance things will go further than even the most deluded purity of heart would allow, and they're much likelier to get there in rural VA than in Fairfax.  Maybe rural NY is different, but I've lived in VA and LA my whole life (while not out of the country in the Army), and in those states, out in the country is a whole 'nother country.  It's only a felony if you get caught, and some people out in such small counties would have had unsupervised access to the ballots in question, even if they are now under lock and key.

                  The states must be abolished.

                  by gtomkins on Fri Nov 15, 2013 at 03:26:48 PM PST

                  [ Parent ]

                  •  nu (1+ / 0-)
                    Recommended by:
                    gtomkins

                    You started out by arguing, "... throw in the subjectivity of human interpretation of the marks on the ballots, and you can simply forget about the resulting count as any sort of indicator of which candidate actually had more votes cast for them." I think the Minnesota experience rebuts that argument.

                    I have no particular confidence about the proportion of undervotes that are intentional. I can say that normally the proportion of ballots that need non-trivial adjudication is small -- and if it turns out to be non-small, that's hardly an argument for relying on the scanner counts.

                    Now, if you think that a recount shouldn't be allowed because dominionists in the boonies may already have altered ballots, or may have carte blanche to interpret ballots as they please, well, that's too bad, since Obenshain is legally entitled to the recount. I don't think that fatalism is anchored in experience of recent recounts, and I don't think it is functional for the purpose of conducting this one.

                    "I am not sure how we got here, but then, I am not really sure where we are." -Susan from 29

                    by HudsonValleyMark on Fri Nov 15, 2013 at 08:30:16 PM PST

                    [ Parent ]

                    •  Not arguing that we shouldn't do a recount (0+ / 0-)

                      I'm not arguing that Obenshain shouldn't get his recount.  Clearly, we need to end this election by the rules in place when it started.  But is the process dictated by those rules a good and reliable one?

                      I'm just pointing out that the recount is likely to be a nightmare, and a nightmare that is at least 50% likely to end with Obenshain being declared the winner, and near 100% likely to declare someone a winner based on a process that doesn't justify confidence that that candidate actually got more votes then the other.  

                      If Obenshain really got more votes, fine, let him be AG, and let us work harder next time to make sure the voters don't make that sort of mistake again.  But this process is never going to leave me convinced that he got more.  Worse, it's never going to convince me that Herring got more votes.

                      We have a process in place that, maybe, if you give it all sorts of breaks, is capable of deciding who actually got more votes to a precision of somewhere near 5 in 10,000.  Below that, and I think I'm being generous at setting the number at 5 in 10,000, we should seriously consider flipping a coin to decide who won, because I'm pretty sure the Commonwealth could manage a fair coin toss, where I'm not sure it could manage a fair hand count.

                      If you seriously mean to defend the process we have right now -- not that Obenshain deserves to have that process play out, but that this process is the best we could do -- can you tell me why I have to guess about the size of the random error inherent in that process?  If this process is to be supervised rationally by judges and election officials as it moves forward, don't they need the random error quantified to be able to make their determinations?  As a minimum, don't we need to know, by actual testing, how good the scanners are at interpreting ink marks made by real people?  If there is a hand recount, we're finally going to look into that question, but is it really a good idea to do that for the first time in the course of a hand recount of a real election?  People are going to have to come up with criteria for hand counting marks on a ballot the machines couldn't call, on the fly at this point, when their decisions are subject to the pressure of affecting the outcome in ways they want or don't want to see happen.

                      There are drawbacks to any method of conducting elections.  Which is why all such methods need to be subjected to testing designed to outline just what those limitations are, and how big they are.  Instead we have this insanely outdated underlying legal theory that elections can be counted accurately and precisely down to the point that a single vote difference should be decisive.  Maybe that worked back when elections had much smaller numbers of votes, and before we had the secret ballot, which made a complete audit trail for votes impossible.  But at this point that principle is just nuts, and unthinking adherence to it forces election law and election officials to refuse to admit that such a thing as a precision error in the system is possible, therefore testing to determine the size of such a variance is not compatible with the basic principles by which we conduct elections.

                      So, sure, Obenshain should by all means get his day in court under the present rules.  But no way should those be the rules governing the next election we conduct.

                      The states must be abolished.

                      by gtomkins on Sat Nov 16, 2013 at 12:52:54 PM PST

                      [ Parent ]

                    •  MN and VA, 2008 and 2013 (0+ / 0-)

                      Your confidence that this recount won't be a nightmare seems to be based largely on the MN 2008 experience.  Now, I don't know with any confidence several key points of difference or correspondence between the two, but what I do know does not fill me with confidence that VA 2013 will recount in a similar fashion.

                      For starters, while the recount ended with Franken as Senator , it ended with him a Senator crucial months after he should have been sworn in.  Had the Ds been able to rely on his vote , they would have had a filibuster-proof majority for much longer before Kennedy was replaced by Brown.  We could conceivably have had Single Payer, a stronger stimulus and immigration reform tackled early, were it not for this "success".  To be sure, it's hard to see any such towering advantage to the Rs from delay in this case (and we may see Obenshain's effort unable to attract major funding because of that), but still.

                      Delay aside, one of the chief reasons to have had confidence early on that the MN process was going to be conducted fairly, was that it was supervised even at the recount phase, before they got to the legal contest, by a Canvassing Board made up mostly of judges.  Unless new law has changed this since the last time VA had a statewide recount, Deeds-McConnell for AG, we have no Canvassing Board.  What we will have supervising the county EBs will be the State Electoral Board.  We've already seen how fair and equitable this bunch of R appointees is.  They changed the rules after the election to force voters to defend their provisional ballots in person in front of the EB.  We can't expect anything but rank partisanship from that lot.

                      If memory serves, in MN a hand recount of all the ballots, all optically scanned if memory serves, was ordered.  What gave confidence that local EBs in MN weren't calling these ballots to serve partisan ends, was the fact that partisan observers were allowed to examine the ballots after the EBs had adjudicated them, and challenge ballots they thought had been wrongly adjudicated.  Now, in VA, partisan and other observers are only allowed to observe during the election itself and the canvass of the results that occurs in the week afterwards.  We absolutely cannot handle any election materials, and election officials only have to let us observe their actions, not necessarily to the point of getting a clear and reliable look at what they are looking at.  You can peak over their shoulders to try to read a number off a tape, but they can object that you're getting too close to their personal space, and they can refuse to hold up so that you can get a better look at the tape before they whisk it away out of sight.  I am told that during our last recount, those rules were still in place, though the law has changed since then, and there was no hand count then to test how these rules would be enforced during a hand count.  Now, unless current law expressly allows the parties to handle ballots to closely examine them, so that the parties can challenge EB decisions, is it really at all paranoid of me to imagine that at least some EBs out in the deep red boonies might play the ballots a bit closer to the vest than they will here in Fairfax?  What is the status of observers under current law?  If it comes to making reasonable interpretations of the probable gaps in current law (we've never recounted under the current law), is it paranoid of me to doubt that the state EB will provide any guidance to local EBs that doesn't either help Obenshain or is a clear legal requirement?

                      Maybe it would have taken some felonies to give MN 2008 to Colman.  Forgive me my doubts that it will take any felonies at all to give this race to Obenshain.

                      The states must be abolished.

                      by gtomkins on Sat Nov 16, 2013 at 02:11:16 PM PST

                      [ Parent ]

              •  oh, one thing about Fairfax... (0+ / 0-)

                From the current unofficial results:

                * Please Note: Absentee numbers by precinct represent the number of voters who applied for absentee ballots not the number of absentee ballots
                returned and counted. The total number of votes from absentee ballots that were returned and counted is part of the aggregate total listed for each
                candidate in the candidate column.
                It appears that those numbers by precinct match the summary numbers, which would mean that the current "total votes" figures includes absentee ballots that weren't returned or otherwise weren't counted. So, I daresay that we really don't know the undervote rate(s) in Fairfax County. These reports often don't mean what they seem to mean, unfortunately.

                I bet we can sort out better numbers for Fairfax (or establish that these really are the right ones), but it may take a while.

                "I am not sure how we got here, but then, I am not really sure where we are." -Susan from 29

                by HudsonValleyMark on Fri Nov 15, 2013 at 02:42:57 PM PST

                [ Parent ]

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