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The American vote: There must be a better way

By Eric J. Sinrod
November 3, 2004
USAToday.com

The American vote: There must be a better way

By Eric J. Sinrod
November 3, 2004
USAToday.com

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Here we go again. It seems like just yesterday that we suffered angst over hanging and dimpled chads, under-counts and over-counts, proclamations of different presidential winners, and lawsuits going up on appeal to the Florida Supreme Court and the United States Court — and couldn't imagine going through such an ordeal again. The fact is that the 2000 election was a statistical dead heat, and every vote truly counted — assuming that every vote could be accurately counted.

I write this week's column several days before the 2004 election, and my guess is that by the time you read this, we still will not know with certainty who the president is. Absent a real margin of victory for either Kerry or Bush, and with armies of lawyers ready to wage war in the courts battleground states such as Ohio, it could be days, weeks, or months before the next President emerges victorious.

This time around, we're hearing complaints about onerous requirements for newly registering voters, the disappearance of absentee ballots, voter intimidation, among other irregularities. In other words, we've had four years since the 2000 election debacle, and yet the voting problem has not been solved.

This is not an insignificant issue, as the past shows. Gore won the popular vote in 2000 by about a half million votes, but he narrowly lost the electoral college. Some argue with force that had the true popular vote been counted accurately in states such as Florida, Gore would have won the general vote as well.

Whether you like or dislike Bush or Gore, there can be little doubt that Gore probably would have managed affairs differently than has Bush. The country currently is deeply divided about Bush's performance as President, especially when it comes to foreign affairs. The outcome of this race will have, inevitably, a dramatic effect on the course of world and domestic matters. It therefore is imperative that the next president enter office based on a true and accurate vote count. The current system is broken and needs fixing.

In an age of instant communications, it doesn't make sense for the electoral college to control the ultimate result of the presidential election. To the extent the electoral college endures, the "winner-take-all" approach for each state should be abolished. Currently, in theory, a candidate can win a state by just a handful of votes, and then as the majority winner, would take all of the state's electoral votes. This in fact happened in Florida in 2000, enabling Bush to win the election, when in hindsight it is not even clear that Bush properly received the majority of the popular vote in that state.

Better technology must be put into place to accurately record true votes. Electronic voting is an available option, however, there have been complaints of inaccuracies and glitches, and most states go without receipts that might be used to verify votes. We have software and computers that handle many other complex and sophisticated societal functions, and it certainly is not beyond comprehension to believe that electronic voting could work — or, at least, work better than previous systems. ATMs, for instance, provide automated banking services millions of times daily for people where it counts — their wallets. Receipts are provided to confirm transactions, and relatively few problems occur.

If private industry will not come forward with better voting solutions, then government itself should take the lead. Perhaps before the 2000 election, the existing voting system was perceived as good enough, as usual margins of victory would outweigh any inaccuracies along the way. But now we know, and have known for four years, that even when tens of millions of voters go to the polls, every single vote can matter in a country that is torn down the middle in terms of who should be President.

This is not a trivial matter, and we must work harder to ensure that our future Presidents truly are elected by the people. Moreover, Presidential results must be accurate and perceived as accurate. Otherwise, we could face a nightmare in which neither side concedes defeat, and litigation could rage on interminably.

While Gore conceded defeat after the United States Supreme Court ruled on the particular case it addressed, the next candidates could launch numerous lawsuits, and not concede defeat even after losing just one or several of such lawsuits. An incumbent could even refuse to leave office when it appears (but it is not certain) that he has lost the election. The parade of horribles goes on and on.

Let's fix our voting system.

Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com. His Web site is www.sinrodlaw.com, and he can be reached at . To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to .