Arizona: a New Definition of "Sufficiently" Mis-Counted?

There's a fascinating nugget inside of a fine legal story unfolding in Arizona. I know that not all our readers are thrilled by news of court cases related to election law and election technology, so I'll summarize the legal story in brief, and then get to the nugget. The Arizona Court of Appeals has been working on case that considers this interesting mix:

• The State's constitutional right of free and fair elections;
• The recognition that voting systems can mis-count votes;
• The idea that a miscounted election fails to be fair;
• The certification for use in AZ of voting system products that had counting errors before;
• The argument over whether certified systems can be de-certified on constitutional grounds.

For the latest regular press news on the case, see the Arizona Daily Star's article "Appeals court OKs group's challenge to touch-screen voting."

Now let's look at what Judge Philip Hall actually said in the decision: (Thanks to Mark Lindeman for trolling this out). The judge refers to a piece of AZ law, A.R.S. § 16-446(B)(6), that says: "An electronic voting system shall . . . [w]hen properly operated, record correctly and count accurately every vote cast." That "every" is a pretty strong word! Judge Philip Hall wrote:

We conclude that Arizona’s constitutional right to a "free and equal" election is implicated when votes are not properly counted. See A.R.S. §16-446(B)(6). We further conclude that appellants may be entitled to injunctive and/or mandamus relief if they can establish that a significant number of votes cast on the Diebold or Sequoia DRE machines will not be properly recorded or counted.

As election-ologist Joe Hall pointed out, "Of course, I'm left wondering 'what is significant?' here. Sounds like a question we'll hear a lot about in the future of this case!" Indeed we will. Of course neither AZ law nor the legal ruling provides a pre-scription for "significant" but note also that "significant" may be a relative concept, depending on how close a race is. (Thanks again to Mark Lindeman for the point.) We know it's pretty easy for today's voting systems to miscount modest numbers (hundreds) of votes, and escape the notice of humans; and we know that contests that close will occur. Does that mean we can't use these voting systems?

I guess the argument is going to continue, both on "significant" in Hall's decision, and on "properly operated" in the AZ law. And as we saw in Humboldt County and many other places, "operator error" is often in the eye of the beholder.

-- EJS