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Man vs. machine at R.I. ballot box

Courts revisit hand-count ban

By Ray Henry
Associated Press / October 12, 2008
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PROVIDENCE - Which are more flawed: humans or the machines they create?

After watching Florida's agonizing recount during the 2000 presidential election, Rhode Island lawmakers sided with the machines. They passed laws eliminating hand counts of ballots and tightened laws to reduce the partisan wrangling that erupts when officials must interpret the scribbles on incorrectly marked ballots.

With a small exception for mail-in ballots, lawmakers decided that if an optical scanning machine rejects a ballot, the vote does not count.

But state courts have chipped away at the law, most recently when the Rhode Island Supreme Court ordered the state Board of Elections to manually inspect ballots this month in two close primary races and count the ballots if the voter's intent could be deciphered.

The ruling is the latest chapter in Rhode Island's ongoing man-vs.-machine debate. In a state known for political corruption, election authorities put their trust squarely with the machines, arguing that humans are biased and make mistakes.

"As long as the machines work properly, both candidates are treated the same way," said Robert Kando, executive director of the state Board of Elections.

But judges seem reluctant to entrust democracy to the circuitry of the Optech IIIP Eagle, the state's official ballot scanner.

"I don't see what the fear is of having a human element involved," said retired Superior Court judge Stephen Fortunato Jr., who forced a manual examination of ballots in 2006, a case that has become a precedent in the state. "When last I checked, democracy is all about human beings and self-government, not government by machines and computers."

Rhode Island's current election laws were shaped in two big steps. Lawmakers revamped the statutes in 1996 to reflect the switch from pulley-and-lever voting machines to optical scanners.

The infamous recount fight in Florida during the Bush-Gore race in 2000 - butterfly ballots, hanging chads, and a protracted legal dispute decided by the US Supreme Court - prompted the next round of revisions.

Appalled by the partisan wrangling in Florida, Rhode Island lawmakers in 2004 passed laws that keep humans far from the ballot-counting process. The General Assembly eliminated manual vote recounts, relying exclusively on optical scanning machines.

They also enacted a strict new definition of what qualifies as a vote. Unless voters mark their choices by drawing a horizontal line connecting the head and tail of an arrow-like symbol on the ballot, their votes do not count.

Anything else, for example, circling or underlining a candidate's name, does not qualify as a vote.

The first legal challenge to the law was made two years later.

Joseph Larisa Jr., a lawyer and a candidate for an at-large seat on the City Council of East Providence, lost an election by a fraction of 1 percent of the total ballots cast. He filed a lawsuit seeking access to the rejected ballots, which election officials feared would open the door to the sort of manual recount they had so recently abandoned.

Judge Fortunato - who himself prevailed in a manual recount in a Democratic primary for state Senate in 1976 - granted Larisa's request. Larisa eventually conceded.

Larisa said that when state leaders were considering whether to buy new voting equipment in the mid-1990s, they deliberately picked a model that retained paper ballots.

"When you get to a point of a near 50-50 election, in my view, that's the purpose of having the paper backup," Larisa said. "So you can actually see if the machines got it right."

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