Professor Steven Semeraro, Thomas Jefferson School of Law

Many have been shocked by the revelation in the wake of last week’s presidential election that mechanical ballot counting is fraught with error. Indeed, these machines may have an error rate approaching 5%. And now the Bush campaign has challenged the traditional backup plan — a hand recount — as too likely to be infected by human error. Can there be no certainty of election results?

It depends on what an election is. Most of us would probably define an election as something like a window into the will of the people. A vote count, no matter how accurate, can reveal only a preference at only a snapshot’s moment in time. We all have had the experience of regretting or questioning a decision shortly after we make it. And surely there are some Americans who feel that way after they vote. Others — apparently a fair number in Palm Beach County, Florida — make mistakes when filling out the ballot. Even if we could approach a certain vote tally, we must now question whether we could ever be certain that the tally truly reflected the will of the people.

The results in Florida have opened our eyes to this conflict between our understanding of elections as a window and the reality that they can be no more than a snapshot. Most commentators have responded by falling back on the rule of law. They argue that there are certain rules that govern elections. Votes must be cast at a certain time, in a certain way, and tabulated in a certain fashion. So long as these rules of election law are followed, the result is fair and should be accepted as legitimate. It is only fair, they say, to put the burden on the voter to make sure that they state their preference in the legally approved fashion.

Re-votes have been rejected as an unfair aberration from the rule of law. They could not, many have argued, recreate the preference structure of particular people who voted at a particular time. Instead, a great deal of additional information would influence those voters. They would have an advantage over those who followed the law and cast their vote correctly on election day. As a result, the outcome of a re-vote would be unfair and illegitimate.

But these commentators may have it backwards. For us to accept a re-count within the margin of error as a legitimate result, we would have to abandon our conclusion that elections are a window into the will of the people. Are we ready to replace that lofty ideal with a definition that elections are just a snapshot of the will of those people who manage to vote according to the rule of law? I seriously doubt that most of us are willing to transform of our democracy into a sporting event of sorts with a rulebook so rigid that it can subvert the will of the people.

Fortunately, we have another option. Certainty in an election result may not stem from the vote count alone. But it can arise when the electorate accepts the result as an expression of our collective will. Typical vote margins — combined with the absence of widespread cries of mistake or regret as ones selected candidate — provide certainty as the people conclude through interaction with each other that their collective will has been captured.

When the vote is too close to provide certainty of that sort, the response should be a re-vote. To be sure, more information would come into play. But if an election is truly a window into the will of the people — as opposed to a snapshot freezing that will in time — additional information need not undermine the legitimacy of the result. On the contrary, a re-vote would likely produce the margin needed to achieve certainty that the will of the people has been captured.

November 14, 2000

Steven Semeraro is an Assistant Professor at Thomas Jefferson School of Law, a private, independent law school located in San Diego, California. Semeraro teaches Criminal Law, Civil Procedure, and a new course, Death Penalty Seminar, in which he trains future lawyers to prosecute and defend death penalty cases. Semeraro graduated with distinction from Stanford Law School.