BUSH RE-ELECTED IN FLORIDA
That may seem premature, but the election is already over. And no, I’m not relying on the latest polls. It’s just the arithmetic of not having enough voting machines in Broward County. A mass of constitutional amendments and local initiatives, combined with with not enough of the new touch-screen voting machines, makes it certain that the Broward turnout will be too low to give McBride any chance whatever. You simply can’t move enough voters through those machines in a 12-hour voting day.
Bush’s tame Secretary of State has just rejected a plea from Broward to allow paper ballots. Bush himself has refused to extend voting hours, though he managed to so for the primary when it helped Janet Reno, his preferred opponent.
Here’s the arithmetic: The county has 5,265 touchscreen voting machines and 978,000 registered voters. In early voting, the average time to vote has been 13 minutes. The polls are open 7 a.m. to 7 p.m. That’s 4.6 voters per hour per machine times 5300 machines times twelve hours is 24,300 times 12 equals 291,000 votes, plus about 75,000 absentees and early voters, for a turnout of about 37%. McBride needs at least 50% turnout in South Florida to have a shot. Game over.
It’s reassuring that Bush and Smith, the Secretary of State, share belief that there’s no problem too hard to be lied about:
“They may have to wait 30 minutes or 45 minutes or an hour,” Smith said. “That is a small price to pay for the democracy that we have.”
He and Bush urged people to vote early as a way to avoid lines.
“It’s worth waiting if you consider your vote to be important,” Bush said.
Here’s the link.
Note that the early-voting lines have been as long as two hours, with lots of voters walking away. Of course, if they hadn’t been walking away, the lines would have been longer. I seem to recall learning in my first operations analysis course that when the mean service time is longer than the mean inter-arrival time, the queue grows to infinite length.
To repeat: It doesn’t matter how committed people are or how long they’re willing to wait. If 450,000 people try to vote and the voting machinery can only accommodate 290,000 of them, some of them don’t get to vote.
Actually … duhhhhhh… there’s an obvious way around this, though it seems unlikely the feuding Broward County voting officials will come up with it. Designate a quarter of the machines as “express lanes” with a three-minute limit, for people who don’t insist on voting for assistant sewer commissioner or on the initiative to require that pooper-scoopers be made of recycled plastic. It wouldn’t be legally enforceable, of course, but I bet the level of voter compliance would be adequate to do the job. With 1300 machines handling 20 votes per hour each and the remaining 4000 handling 4 votes per hour each (allowing for the fact that the fast voters would have been siphoned off, leaving slower voters on average) the capacity of the system would be 26,000 + 16,000 = 42,000 per hour, or just over 500,000 votes in 12 hours.
That’s overoptimistic, because there will be empty machines during the middle of the day, with the big crunches in the morning and late afternoon (though I suppose you could designate more express machines at the peak hours). But it’s also somewhat more than needed; if the total turnout is 55% and 75,000 vote early or absentee, there will only be 460,000 live voters. And there’s a little bit of additional slack in the rule that any voter present by 7 PM gets to vote, which could stretch the effective voting time by an hour or two. Worth a try. The Secretary of State would never approve, of course, but there isn’t much he could do about it afterwards. This is clearly a case where it’s going to be easier to get forgiveness than permission.
Jacob T. Levy points out that the proposal above wouldn’t survive judicial scrutiny on equal protection grounds. He argues that it would impermissibly discriminate in favor of the literate or those voting straight tickets. (My expectation was that most of the people who took the quick option would simply vote for a limited number of offices, but clearly some people can do more in three minutes than others.)
A decision holding that it was constitutional to completely deprive voters of the opportunity to vote by not having enough voting machines and refusing to print paper ballots, but unconstitutional to offer them instead a chance to vote for a reduced number of offices, would certainly accord with my intuitions about the extent to which judicial reasoning tracks reasoning.
Note that the proposal would advantage, rather than disadvantaging, voters taking the slow option. Their wait in line becomes shorter as large numbers of other voters were diverted to the fast line. Clearly, the people choosing the fast line who were slow voters would be disadvantaged compared to the people choosing the fast line who were fast voters, but each of them (though not all of them) would have the option of avoiding that disadvantage by waiting in the slow line.
Still, it’s quite likely that Levy is correct about what a court would say about the proposal. But would a court enjoin an administrative decision, made in what is clearly an emergency setting, and would it do so fast enough to matter? I’m not sure. And if it didn’t, then it’s not clear what the court could do about it afterwards, other than enjoining a repetition. The votes would count.
The same applies to the Secretary of State: he could clearly rule that the procedure was improper, but it’s not clear what he could do about it.
Glenn Reynolds is shocked — shocked! — that I’m advocating an extraordinary emergency procedure that would allow people to vote who would otherwise, through no fault of their own, be denied the option of voting, despite the fact that a court might later rule against it.
Note that there is, to my knowledge, no provision of Florida law forbidding such a procedure. Obviously, violating a statute, or a prior court ruling establishing precedent, would be intolerable. The question is whether to allow a hypothetical court ruling to stand between the voters of Broward county and the franchise.
Reynolds, in quoting me, carefully edits out the argument above that in fact no voter would be disadvantaged by the proposed procedure. And of course he makes no comment on the propriety of Gov. Bush and his Secretary of State ensuring a Bush victory by refusing to enable his opponents to vote.
Yes, yes, the primary responsibility is with the Broward voting officials. But if it’s a denial of equal protection to allow some voters to vote in return for their promise to vote quickly, what is it to deny hundreds of thousands of people the opportunity to vote at all?
I think the technical term is “Straining at gnats and swallowing camels.”
Jacob Levy reconsiders, sparing me from arguing a point of law with two law professors. There being a tie vote among the experts, and my opinion being not a whit better than yours, the final decision (for the moment) lies with you, gentle reader.
Of course all these arguments don’t change the basic fact that the election is over before the polls have even opened.
ONE LAST UPDATE
Glenn has generously noted my claim that no voter would be damaged, and linked to Levy’s revised opinion.