Tuesday, September 23, 2003

Fatal Disease: "Punch those Chads -- but Don't Muss Your Hands with Evidence!"

Yesterday, courtesy of MSNBC, I watched oral arguments before the 9th Circuit's en banc panel about the postponement or non-postponement of the California recall vote. I am only a lowly Evidence teacher, but, with the greatest humility and the utmost diffidence, I would like to make a suggestion to the high-minded counsel -- scholastic counsel, practically -- who do reform litigation about matters such as chads, punch card voting machines, and similar matters. I would like to suggest that sometimes you pay a bit more attention to evidence. Now I realize that mundane matters such as evidence are beneath you; I do appreciate that you feel you should be talking about high constitutional principle, and not about uninteresting stuff such as evidence and facts. But, you see -- if I may be so bold -- even in the noblest crusades constitutional crusaders sometimes just have to muss their hands with earthy [i.e., evidentiary] matter. For example, in the proceedings regarding the California recall, you might just want to make sure that the record amply supports -- that the evidentiary record amply supports the reasonable-sounding but potentially a priori proposition that punch card voting machines are more prone to error than are alternative voting systems, such as the electronic ones that are apparently in use in some other parts of California. (I keep thinking of my Mother, who gets flustered by a TV set, not to speak of an electronic voting machine.) I offer my advice with humility and charity. "Charity?," you might say. I would reply: Yes, well, you see, the sentiment of charity arises in my breast because it was extraordinarily painful to watch you struggle to find some way to assert that punch card machines are less accurate than alternative electronic voting methods without, apparently, actually having any good evidence that what you claimed to be true about punch card voting machines (in comparison to alternative voting systems) is actually true. Your strong aversion to evidence is what apparently accounts for your stratagem of emphasizing that some California official or other had concluded that punch card machines are less accurate than available alternatives. Your difficulty -- the source of which you may not yet realize, which is why I go to the trouble of offering my humble opinion here -- the source of your difficulty in the California oral argument before the 9th Circuit panel was reminiscent of the agonies and embarrassment that your fellow crusaders experienced in Florida, in Bush v. Gore, when, in that lowly Florida trial court, it was finally time for the pro-Gore lawyers to put up or shut up -- i.e., to show, with evidence, that some of the things they had been saying about punch card voting and similar matters were actually true -- and what we got instead, after all of the millions of dollars that had been expended on the pro-Gore legal campaign, were [a mere] four or so pro-Gore witnesses, including one expert on statistical aspects of voting systems who was so badly prepared by the pro-Gore lawyers that today he might well wish that he had never met a lawyer. The point I wish to make, my dear legal brothers and sisters, is that even when it comes to high constitutional principle, evidence and facts do matter. You really must learn this lesson. Otherwise I expect to see further legal shipwrecks -- such as the one I witnessed yesterday.

Post a Comment