Security Concerns About Using Vote by Mail in Florida Primary Do-Over

By Rick Hasen, Huffington Post. Posted March 10, 2008.

There are strong reasons, both equitable and political, to do something about the current standoff over whether Florida's delegates to this summer's Democratic National Convention should be seated. But the idea currently floated by Sen. Bill Nelson (D-FL) of conducting a "do-over" via an all vote-by-mail primary makes me very concerned about the security and accuracy of such a vote. A far better option would be to award delegates 50-50 to Sens. Clinton and Obama.

Politically knowledgeable people know the relevant background. As I recently explained at Slate, "Florida and Michigan famously held their primaries too early this year, violating the scheduling rules set by the Democratic National Committee. None of the Democratic candidates campaigned in those states, and Obama's name did not even appear on the Michigan ballot. ("Uncommitted" got 40 percent of the votes, compared with Clinton's 55 percent.) Clinton won both of these contests, and she has taken the position that the Florida and Michigan delegates should be seated, a position rejected by the DNC chair, Howard Dean."

Certainly seating Florida and Michigan delegates elected from these early states a very bad precedent for the Democratic Party. It would only encourage states in future elections to buck party rules and increase the race to the front of the line in an already front-loaded primary system. But Michigan and Florida voters didn't make this choice of when to vote; politicians made if for them, and it seems unfair to punish these voters by not allowing their votes to count or their delegates to be seated. And in any case, these states are too important to the Democrats in the November general election to risk angering them now.

One possibility some have suggested is simply seating Florida and Michigan delegations with an even split between Clinton and Obama delegates. That's not what the Florida and Michigan voters chose, but that seems fairer than approving the results of a contest run under unfair rules and conditions.

A fairer option -- if it is feasible -- is a "do-over." Michigan, which already has great experience running caucuses, is rumored to be planning a late spring caucus.

Florida presents a much more difficult problem. It has no experience with caucuses, and it is in the process of transitioning, yet again, between voting technologies. (Florida was one of the first states to phase out those inaccurate punch card voting machines, but they were replaced by electronic voting machines. The state has now decided to scrap the electronic machines, given public distrust over their use, and is replacing them with other technology such as optical scan equipment.)

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Richard L. Hasen, author of the Election Law Blog, is the William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles.

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