FL-13

Election 2006 isn't over yet - not only do we have runoff elections in Texas and Louisiana to keep us entertained, there are still some races that are going through the varying certification/contest procedures. Most of these "too close to call" races have been settled in the last few weeks, as the trailing party realized it just wasn't going to happen for them. But in Florida's 13th District, currently held by the soon-to-be-banished-to-the-wilderness Katherine Harris, the fight over who won is ongoing.

A little background. On election night, Republican Vern Buchanan came up with a narrow lead over Democrat Christine Jennings. Over the past few weeks, that lead has narrowed somewhat as the official certification and recount procedures have been conducted. The interesting thing about the race, however, is the fact that in Sarasota County, ballots recorded a huge undervote in this race, at about 13%. For a baseline, absentee ballots in that race recorded an undervote of 2.53% (because voters legitmately did not want to vote for either candidate or for that race). I've seen typical-undervote numbers of between 2-5%, so the 13% undervote is exceptionally large.

Now, it appears that the undervote is the result of flawed ballot design (many reports on this: here's one). If you assume that the undervoters would break out the same way as those who actually voted in the race, then it's virtually certain that Vern Buchanan's slim lead (down to about 400 votes) would disappear, and Christine Jennings would win.

All of this has led Rick Hasen, the man behind Election Law Blog, to conclude that the House of Representatives should declare the seat vacant rather than allow Vern Buchanan to take it, because the results of the electorate are in doubt. In case you were unaware, this is perfectly Constitutional - the House (and the Senate, for that matter) are officially the judges of the elections, returns, and qualifications of its members. Such matters are considered inherently political, and the Courts tend to prefer to stay out of them - and so the Legislative Branch essentially can deal with these situations however it sees fit.

First, the good side of this. I think if you actually spoke to the voters who cast an undervote, the majority would have said "I meant to vote for Jennings" or "I would have voted for Jennings." I think that about 3% (of the total voters, not of the undervoters) would have chosen not to vote at all. That means that roughly 10% of the people who went to the polls didn't have their intentions recorded. As a result, holding a new election is probably the only way to register the intent of these voters - and Jennings would almost certainly emerge victorious.

HOWEVER - I have to remain consistent here. I have always said that, in the case of bad ballot design, both the person who designed the ballot AND the voter are at fault. Voters need to take the process of voting seriously. Yes, the design was flawed (it placed the race at the top of the page, with a very large STATE heading right below it) - but, voters who were paying attention would have noticed the race at the top of the page (after all, at least 87% of voters succeeded in casting a vote).

Additionally, new elections are generally unfair. Voters know that their vote is important (because it's a close election), so they show up when they wouldn't have before. They know the makeup of the new Congress, so Republicans may be dispirited and Democrats may be complacent. There are all sorts of factors that aren't present on Election Day. There is, in other words, no guarantee that the results of a new election would be consistent with the supposed "true results" from election day.

IF the undervote in this election were mechanical (i.e. the machines failed somehow), THEN I would support the push for a new election. As it is, the undervote was most likely the result of voter and ballot design failure - and I can't justify pushing for a new vote on those grounds.