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Larry Stirling
Larry Stirling is a former State Senator and Retired Superior Court Judge

Tribal Nonsense
The Ninth Circuit Panel Got it Wrong!
[Larry Stirling] 09/19/03

Laurence Tribe’s assertion (Wall Street Journal 9/18/03) of “palpable hypocrisy” concerning the Ninth Circuit Panel’s awful conduct would be down right laughable if this was not such a serious matter.

A leftist cabal, of which Tribe is a charter member, has hijacked the California constitution.

Tribe’s analysis is wrong both on both the facts and the law: pretty sorry for a Harvard Law prof.

First, the facts: There are no systems errors in the punch card or the mark-sense systems. The Registrars of voters from both San Diego and Los Angeles Counties and others have said so in depositions that were never read by the judge and in recent press coverage. No registrar was called to testify and they are the ones that run the elections, not Berkeley Profs.

Both of these systems, far from being outdated, are mature, efficient, and effective technology. They have been used millions of times by millions of people.

The only people who state otherwise are the salesmen for Diebold and other touch-screen technologies. (A Boolean search of the Internet will disclose substantial controversies over the dependability of the touch-screen technology.)

All such assertions by Tribe or anyone else are simply blatant lies.

The evidence concerning the asserted error rates should have been excluded as “junk science” under The Federal Rules of Evidence.

The fact that the defendants did not object makes it appear that these were collusive suits between the ACLU and friendly office holders that had political conflicts of interest.

The so-called “error rate” attributed to these systems are a combination of so-called “overvoting” and “undervoting.”

So-called “overvoting” is not an error in the systems; it is an error by the voter.

It means the voter punched two holes in one race. In San Diego County, Registrar Sally McPherson has stated publicly and repeatedly that such mistakes by voters constitute just about one third of one percent of the unrecorded votes.

The much larger element of the putative “error rate” is “undervoting.” Undervoting is registrar lingo for the notion that some voters decide to simply not vote in some races. In political circles, this is known as the “voter drop-off rate.” There are simply many voters that pick and choose which races they feel comfortable voting in.

“Undervoting” is not a systems error and indeed not an error at all. The decision to vote or not to vote is the sole right of the voter. Any discussion about or assertion that undervoting is an error should be dropped from the debate. Automated systems will not make people vote.

He was also wrong on the law: The issue in Florida was that different counties had different standards for evaluating disputed ballots. California always had a statewide standard for evaluating disputed ballots.

There will always be some minor disparity in the vote recordation rate. It is impossible for it to be otherwise. The legal question is what level of disparity constitutes a violation of equal protection. The California systems are well within any reasonable tolerance level and appear to be a half of one percent when the “undervoting” data is eliminated. Pretty durn good record I would say.

The right thing for the Ninth Circuit “Banc” to do would be to suspend the order of the Panel and return the matter to the trial court for competent evidence. If such evidence is adduced, the case will be thrown out on its ear and the lawyers sanctioned for honeyfuggleing the court.

Give us our election back!

copyright 2003 Larry Stirling


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