FROM:   Kim Alexander
DATE:   September 21, 2003
RE:   9th Circuit hearing Monday, live on CSPAN, "Vote Not Cast"

Hi Folks,

On Monday, September 22 at 1 p.m. Pacific time, 11 judges from the 9th U.S. Circuit Court of Appeals will hear the ACLU punch card lawsuit case in which a smaller, 3-judge panel of the court ruled on last week and decided that the October 7 recall election should be delayed until March 2004.

I understand from reading the local news that the 9th Circuit has agreed to allow CSPAN to broadcast the proceedings live, given the high level of public interest in the case.

I will be watching and hoping that the courts discuss the problem with the statistics being used to judge the so-called "error rate" in California's various voting systems. This "error rate" is actually the "votes not cast" in the race at the top of the ticket (i.e. President, Governor) and includes overvotes (which make up a small portion of the total number), unintentional undervotes (i.e. where a voter attempted to punch or mark a choice but the choice didn't register) and intentional undervotes (i.e. where the voter chose to skip the race altogether).

We have no way of measuring the percentage of intentional undervotes that comprise the "votes not cast", primarily because voters cannot mark an abstention vote on their ballots. And voters do skip contests at the top of the ticket, albeit at a lower rate than contests at the bottom, such as those for judges and local measures.

In November 2000, 1.6 percent of California voters who went to the polls did not cast a vote in the race for president, either because they overvoted (again, a small portion of the total number) or they undervoted, most likely intentionally. In November 2002, 3.4 percent of Californians who went to the polls did not cast a vote in the race for Governor. This higher "votes not cast" rate has been widely viewed not at a sign that California's voting equipment is unreliable, but rather as an expression of voters' dissatisfaction with their choices for governor, resulting in a high number of intentional undervotes.

The most striking example of this was Marin county, which had the lowest "votes not cast" rate in November 2000 of all 58 counties, at .4 percent. In November 2002 Marin had one of the HIGHEST votes not cast rate, at 4.1 percent. Both elections were conducted on the county's Diebold Accuvote ES-2000 optical scan voting system. The difference between the "votes not cast" percentage is most likely due to a higher intentional undervote rate in Marin in November 2002 than in November 2000.

The bottom line is that the measurement the ACLU is relying on to measure the accuracy of California's voting equipment is itself inaccurate. It's worth noting that the research conducted by UC Berkeley Professor Henry Brady which characterizes "votes not cast" as an "error rate" was funded by Sequoia Voting Systems, which had a vested interest in the outcome of the research.

For more about the disputed "error rate", see the San Francisco Chronicle's Sept. 17 article at For a chart showing the Votes Not Cast in the 2000 election in the contest for president, see Note that this chart shows that of the four counties that had a "votes not cast" rate higher than 2 percent, only one used the Votomatic style punch card voting system.

-- Kim Alexander, California Voter Foundation

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This page was first published on September 22, 2003 | Last updated on September 22, 2003
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