The SJC just decided a ballot recount case, ruling which disputed ballots should be counted and why:
http://www.courts.state.me.us/court_info/opinions/2008%20documents/08me117ba.pdf
The decision includes a nice summary of all the general rules applied in Maine for determining whether to count a ballot. That they put this together in just a week is really commendable. Here’s another useful one they issued in 2004:
http://www.courts.state.me.us/court_info/opinions/2004_documents/04me99ba.htm
I have represented folks in recounts (both Democrat and Republican — I embrace diversity), so I’ve looked at this issue before. It’s nice to have a decison that puts most of the rules in one place. What it all boils down to, however, is you count the ballot if you can figure out who the voter was intending to vote for. This guiding principle does answer basic questions. As a general perspective, for example, we don’t penalize people for not following the rules — there’s no view that if you are too dim get it right, we don’t want your vote to count. This general perspective, in turn, translates into certain concrete, somewhat objective and predictable outcomes — for example, little bitsy mistakes like drawing outside the lines won’t be fatal.
In the end, however, while we can gussy up this process with recitation of various precedents and principles, the dispute winds up, necessarily, as another one of those "know it when you see it" situations. To figure out intent, somebody needs to look at that squiggly line and, however armed with the precedents trying to bring consistency to the review, make a individual decision.
Which is all the more reason why the ruling here that human beings decide, not machines, makes sense. The Court rules that the machines’ results don’t trump the human recount process. Whatever your feelings on the whole Bush v. Gore kerfluffle, I hope we are all on board with this basic concept. Nobody wants courts deciding elections — but when there’s a ballot problem, it’s like democracy — having a court review is imperfect, but better than anything else that anyone’s come up with. I for one don’t want to abdicate my vote to a machine. Whatever your view on judges being the arbitrer, having HAL from 2001 Space Odyssey decide would hardly be an improvement.
Maybe it’s having done so much work in places where elections were either non-existent or suspect (I was thinking Africa and Eastern Europe, here, not my days in Chicago, although …) that makes me fairly happy with what we’ve got, messy as it is. I was in Bucharest when the Bush-Gore thing was going on, and, coincidentally, there was an election happening in Romania at the same time. I remember lots of people from various countries at the conference I was attending ribbing me, saying "Cathy, forget these chads and dimples, you Americans must learn how to steal elections the professional way!" When it was all over, some of these people were astonished that, whatever one’s feelings about the Supreme Court’s ruling, everyone in the U.S. said "ok, the black robes have spoken," and there were no riots on the streets.
I certainly hope we come up with better machines and processes, and we apply consistent due process and equal protection principles as a general matter. But there’s nothing suspect about this particular SJC decision, certainly, and my experience in doing recounts and ballot disputes in Maine have showed me that the judicial review of ballot disputes is absolutely devoid of politics. No place is immune to election funny business (remember that ballot tampering scandal from 1992? And even farther back, take a look at old newspaper articles about Maine’s 1891 ballot reform legislation). We have to be vigilant. But, happily, I don’t think we have to worry about this SJC getting on any partisan act.
