Dan Tokaji, Moritz College of Law, Ohio State University:

"Think old-fashioned paper ballots guarantee election integrity? Think again.

In a fascinating case coming out of Puerto Rico, the First Circuit Court of Appeals heard argument Monday over which ballots should be counted in the race between Anibal Acevedo Vila, who narrowly defeated Pedro Rossello, the former governor and pro-statehood candidate, by 3,880 votes. Still in dispute are some 28,000 disputed ballots, cast using Puerto Rico's "outdated paper balloting system, in which voters simply mark an X in pencil next to the preferred candidate for governor and nonvoting member of Congress." The disputed ballots are ones that showed a vote for both Mr. Vila and a small third party that supports Puerto Rican independence. Mr. Vila says those votes were properly counted as votes for him; Mr. Rossello says they shouldn't have been. A Puerto Rico court has said the disputed ballots should be counted, but a U.S. district judge has ruled otherwise.

Former Solicitor General Ted Olson, who famously represented George W. Bush in Bush v. Gore, is representing Mr. Rossello — and is claiming that the decision belongs with a federal judge, who said the ballots shouldn't be counted. According to Olson, counting the disputed ballots would give more weight to some votes than others. (Well, it worked once before, I guess.) On the other hand, Mr. Vila's lawyer Charles Cooper and the Puerto Rico Election Commission's lawyer Prof. Rick Pildes (whose name the NYT misspells) argue that the decision belongs in Puerto Rico's courts and should be decided under its election laws." [December 14, 2004; Equal Vote has the post]