Leave no vote behind, with Gordon Lloyd (The Washington Times) October 31, 2004

While educators worry about leaving no child behind, the theme of this year’s presidential election might well be “leave no vote behind.” Indeed more attention seems to be focused on whether the balloting is perfect than on the quality of the candidates themselves. Let’s skip the meal and just haggle over the menu and the ordering forms.

Since a heavy vote generally favors Democrats, Republicans have signed up thousands of precinct workers to make sure no extra voters show up who are not properly registered. And after Republicans won the post-election legal battles last time, Democrats have recruited over 10,000 lawyers to be ready to go to court over any imperfections in voting processes. Don’t bet the candidates this year – the real action will be the battle of the observers versus the lawyers.

We will stick our necks out and predict that when millions of people vote on a single day next week, the process will not be perfect. It has never been. When Richard Nixon lost a close election to John Kennedy in 1960, there were sufficient voting irregularities reported in Chicago alone to change the outcome and President Eisenhower encouraged Nixon to demand a recount.

The big difference between the 1960s and today is that Richard Nixon exercised self-restraint for the greater good of the republic and let the final count — imperfect as it was — stand. He underscored the need for finality in democratic processes, substitution self-restraint for endless legal appeals.

As of the 2000 Florida recount, however, self-restraint for the good of the republic is out and legal challenges over voting imperfections are in. Both then and now, neither candidate seems to be willing to avoid court action in the name of the public good, so that elections are not really over even when the polls close and the totals are announced.

Courts and lawyers have created the dangerous myth that voting needs to be perfect to pass Constitutional muster. All voting technologies produce some rate of error. And, since the U.S. Constitution leaves the time, place and manner of voting to the states, there will inevitably be a variety of perfectly legal approaches to voting from state to state.

The troublesome alternative that faces the nation now is an emerging zero tolerance policy, which asserts that any flaw in a democratic process is unconstitutional and may be challenged at whatever cost to the stability of the republic. Proponents of zero tolerance and leaving no vote behind base their case on the Constitution’s assurance of equal protection of the laws. But equal protection, even in the strictest sense, does not demand impossible perfection.

One version of the equal protection myth is that a minority party member’s vote — such as a Republican in California or a Democrat in Kansas — does not count equally because of the winner-take-all Electoral College system. But that confuses aggregating votes with leaving votes behind. Merely because your vote is aggregated by Congressional district does not mean that vote has been left behind. By that reasoning, every vote for a losing candidate eventually becomes irrelevant.

To carry these equal protection arguments to their illogical end, what about citizens who do not vote at all? They have equal opportunity but, in the end, not equal protection. Must we then make voting mandatory for all citizens to satisfy the expanding equal protection standard?

Disillusionment is the child of illusion. If there is a significant disillusionment about the legal wrangling over this election, it will be in large part because of the illusion lawyers and courts have created that voting must be uniform and perfect to be democratic. Only self-restraint on the part of voters, campaigns, lawyers and judges will halt this rush toward misguided notions of zero tolerance, leave no vote behind, equal protection democracy. Otherwise we face the sad specter of this election being decided by lawyers in courtrooms, not by citizens in voting booths.

This op/ed appeared on Page B-1.