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A Critical Theory of (Voting) Technology

December 20, 2000: This message was distributed by Papyrus News. Feel free to forward this message to others, preferably with this introduction. For info on Papyrus News, including how to (un)subscribe or access archives, see

I've been wanting to write something on the recent US elections from the perspective of a critical theory of technology. Or perhaps to write something on a critical theory of technology from the perspective of the recent elections. Anyway, I haven't had time yet to write anything serious, so I'll just share a few thoughts.

Basically a critical theory of technology is in contrast to two other perspectives: determinism and instrumentalism. Technological determinism suggests that the technology itself automatically brings about certain results (whether good or bad). Instrumentalism is a seemingly opposite approach; it views technology as completely indifferent toward the ends to which it can be used.

In fact, both of these approaches underestimate the role of social context in helping shape the impact of technology. Technology is NOT determinist, but is shaped by human agency. And people can NOT use technology toward any ends they wish, as technology carries with it certain biases which reflect its own historical development and design. Take for example, the Internet--which was designed to be used on personal computers (a bias toward the economically well-to-do) using the ASCII code (a bias toward users of roman alphabets), etc.

It is thus impossible to evaluate any technology on its own accord; it must be understood in an ecological context. And it is particularly important to examine the (unequal) power relations that effect how technology is used. Which brings us to the US presidential election.

Backers of George Bush would have us believe that machine counts are superior to hand counts in that machines are "unbiased." What this ignores though is the bias that shapes how machines are used.

This is reflected, for example, in the fact that different voting technologies are used in the same state. In Florida, for example, richer counties (which tend to me more conservation and supportive of Republican candidates) use more modern voting technologies that experience fewer error (ballots that machines won't read well, etc.) Poorer counties (with tend to include more working class and minorities who usually vote for Democrats) use older equipment with a higher error rate. Thus the technology cannot be evaluated in isolation from how it is used.

There is another important factor, which is that the poor also tend to be less literate than the wealthy, so the base of the Democrat party has a harder time with confusing ballots than does the base of the Republican party. And literacy is NOT supposed to be a factor in voting; indeed, literacy requirements were thrown out by the courts many years ago in the US. Of course, for all practical purposes, you have to be literate to read a ballot. But voting (and vote-counting) procedures can be set up to more tolerant of people with lower literacy skills, or more intolerant.

Now, let's go back to the question of whether a machine is better than a human in counting votes. Here there is an important distinction between consistency (or reliability) and validity (or accuracy). A machine might be consistent in how it counts votes, but it also is more likely to be consistently wrong. There is not doubt that a person can count votes more accurately. (Let's put it this way: if your life depended on an accurate assessment of how you intended to vote, would you rather have your ballot sorted by machine or carefully inspected by a team of four human judges?) This is particularly the case in the punch-card voting system (again, used predominately in pro-Democratic areas) where faults in the equipment prevent the holes ("chads") from being punched completely through and thus read by the machine.

Now one could also claim that, even if machines are inaccurate, they are inaccurate in a fair way (benefitting or punishing each candidate equally) and are thus superior to humans, who could introduce a political bias. What this ignores, though, is that the inaccuracies in machine counts ALREADY reflect a strong political bias, as suggested above. Specifically, at least in the state of Florida, a refusal to count ballots by hand left in substantial errors which strongly biases rich, white supporters of George Bush.

What are the facts to support this? Well, until now, the actual evidence of this has been unclear, especially because the Bush team was so effective in shutting down the vote count. Fortunately, though, Florida has freedom of information laws which mean that the ballots are open to inspection by the media and other interested parties. And the results of this inspection are already starting to become known.

Take for example the results in Lake County, a medium-sized conservative county where Bush won by a healthy majority (with 15% more votes than Gore). Now the Bush team had criticized Gore for asking for "selective recounts," i.e., in certain counties that were more Democratic. The implication was that Bush would benefit from recounts in HIS counties, thus evening everything out if a recount were done statewide. (Of course, the Bush campaign never believed this, because even when the Florida Supreme Court suggested a STATEWIDE recount, Bush went to court to stop it.) But anyway, the myth is still there that the hand recount process is flawed, either because it involves (a) unfairly "guessing" at a voters' intention, and thus introducing human bias, or (b) selectively aiding Gore by recounting in pro-Democratic counties.

Now, back to the extremely interesting results in Lake County. Even though this county was won by Bush, an investigation of the ballots by news organizations, just released, shows that Gore would have picked up an unambiguous 130 votes if all the ballots had been accurately counted (see story at More specifically, there were 376 votes that were CLEARLY for Gore that were thrown out, and only 246 that were CLEARLY for Bush that were thrown out. All these votes were ones where the voter had accidentally marked both the candidate's name and then the "write-in" box, and had proceeded to correct the mistake by writing in the candidate (or the candidate's vice-president) on the slot. In other words, something checked Gore and then wrote in Gore's name (or Leiberman's name), or, on the other side, checked Bush, then wrote in Bush's or Cheney's name. In this case, a hand inspection makes it 100% clear who the voter intended to vote for, while a machine count throws out the ballot because the person had voted twice (even if it's twice for the same candidate!)

What's especially interesting is that even though Bush won this county by 15%, Gore picked up more than 50% more votes in the recount than did Bush. Projecting Gore's gains from this one-county recount to the entire state, and Gore might have picked up more than 8,500 votes in a hand recount (remember, he "lost" the election by only a few hundred). Of course it's probably that Gore would have picked up many more votes in a recount, because this was a CONSERVATIVE county. If he did so well in a conservative county, he most likely would have done much better in more liberal counties if all the votes were truly counted.

One final element is worth noting--especially for people from outside the US who might not be familiary with the US electoral methods. And that is this: Hand recounts are a completely normal feature of US elections. Every time the margin of "victory" is smaller than the margin of error, a hand recount can be asked for an is often automatically granted. This year alone, hand recounts were held in numerous close elections for other offices throughout the US (and were also demanded by the Bush campaign in at least one state that Bush narrowly lost, New Mexico). In other words, the shutting down of the hand recount in Florida had absolutely nothing to do with any special "trust" in machines, and had everything to do with assertion of power to force an illegimate electoral result.

In summary, voting machines, like other technologies, are neither good, nor bad, nor are they neutral. They are a reflection of broader political struggles related to wealth, power, literacy, language, and education. This broader political context is ALWAYS there. The one good thing to come out of this election is that a spotlight was thrown on it, so that the relationship of voting technology to inequality of money and power is now coming under greater scrutiny.

A couple of final comments. Lake County is not the only one reporting. Broward County, which was criticized for being too "lenient" in its standards of hand recounting (supposedly to the benefit of Gore) is now being shown to have suppressed Gore votes ( A more full and accurate count of Broward alone would apparently have won Gore the election).

I don't have time to write more right now, so I'll close by including "A Laymen's Guide to the Supreme Court Decision in Bush v. Gore" by Mark Levine, a US lawyer. Levine's essay has been circulating widely on the Internet (I got this particular version from Phil Agre's Red Rock Eater News). I will also ask readers--even if you aren't interested in the US election a bit, or in "politics" per se-- to think about the implications of a critical theory of technology for other social issues--such as education. The SOCIAL CONTEXT of machines in schools is at least as crucial as the social context of machines in voting.
Mark Warschauer

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A Layman's Guide to the Supreme Court Decision in Bush v. Gore

Q: I'm not a lawyer and I don't understand the recent Supreme Court decision in Bush v. Gore. Can you explain it to me?

A: Sure. I'm a lawyer. I read it. It says Bush wins, even if Gore got the most votes.

Q: But wait a second. The US Supreme Court has to give a reason, right?

A: Right.

Q: So Bush wins because hand-counts are illegal?

A: Oh no. Six of the nine justices believed that hand-counts were legal and should count. Indeed, all nine found "Florida's basic command for the count of legally cast votes is to consider 'the intent of the voter.'" "This is unobjectionable as an abstract proposition." In fact, "uniform rules to determine intent" are not only "practicable" but "necessary."

Q: So that's a complicated way of saying "divining the intent of the voter" is perfectly legal?

A: Yes.

Q: Well, if hand counts are fine, why were they stopped? Have the re-counts have already tabulated all the legal ballots?

A: No. The five conservative justices clearly held (and all nine justices agreed) "that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter." So there are legal votes that should be counted but will never be.

Q: Does this have something to do with states' rights? Don't conservatives love that?

A: Yes. These five justices have held that the federal government has no business telling a sovereign state university it can't steal trade secrets just because such stealing is prohibited by law. Nor does the federal government have any business telling a state that it should bar guns in schools. Nor can the federal government use the equal protection clause to force states to take measures to stop violence against women.

Q: Is there an exception in this case?

A: Yes, the "Gore exception." States have no rights to control their own state elections when it can result in Gore being elected President. This decision is limited to only this situation.

Q: C'mon. The Supremes didn't really say that. You're exaggerating.

A: Nope. They held "Our consideration is limited to the present circumstances, as the problem of equal protection in election processes generally presents many complexities."

Q: What complexities?

A: They didn't say.

Q: I'll bet I know the reason. I heard Jim Baker say this. The votes can't be counted because the Florida Supreme Court "changed the rules of the election after it was held." Right?

A: Wrong. The US Supreme Court made clear that the Florida Supreme Court did not change the rules of the election. But the US Supreme Court found this failure of the Florida Court to change the rules after the election was wrong.

Q: Huh?

A: The Legislature declared that the only legal standard for counting vote is "clear intent of the voter." The Florida Court was condemned for not adopting a clearer standard after the election.

Q: I thought the Florida Court was not allowed to change the Legislature's law after the election.

A: Right.

Q: So what's the problem?

A: They should have. The US Supreme Court said the Florida Supreme Court should have "adopt[ed] adequate statewide standards for determining what is a legal vote"

Q: I thought only the Legislature could "adopt" new law.

A: Right.

Q: So if the Florida Court had adopted new standards, I thought it would have been overturned.

A: Right. You're catching on.

Q: Wait. If the Florida Court had adopted new standards, it would have been overturned for changing the rules. And since it didn't do it, it's being overturned for not changing the rules? That makes no sense. That means that no matter what the Florida Supreme Court did, legal votes could never be counted if they would end up with a possible Gore victory.

A: Right. Next question.

Q: Wait, wait. I thought the problem was "equal protection," that some counties counted votes differently from others. Isn't that a problem?

A: It sure is. Across the nation, we vote in a hodgepodge of systems. Some, like the optical-scanners in largely Republican- leaning counties record 99.7% of the votes. Some, like the punchcard systems in largely Democratic-leaning counties, record only 97% of the votes. So approximately 3% of Democratic-leaning votes are thrown in the trash can.

Q: Aha! That's a severe equal-protection problem!!!

A: No it's not. The Supreme Court wasn't worried about the 3% of Democratic-leaning ballots (about 170,000) thrown in the trashcan in Florida. That "complexity" was not a problem.

Q: Was it the butterfly ballots that violated Florida law and fooled more than 10,000 Democrats into voting for Buchanan or both Gore and Buchanan?

A: Nope. The courts have no problem believing that Buchanan got his highest, best support in a precinct consisting of a Jewish old age home with Holocaust survivors, who apparently have changed their mind about Hitler.

Q: Yikes. So what was the serious equal protection problem?

A: The problem was neither the butterfly ballot nor the 170,000 or 3% of Democratic-leaning voters (largely African-Americans) disenfranchised. The problem is that somewhat less than 0.01% of the ballots (less than 600 votes) may have been determined under ever-so- slightly different standards by judges and county officials recording votes under strict public scrutiny, as Americans have done for more than 200 years. The single judge overseeing the entire process might miss a vote or two.

Q: A single judge? I thought the standards were different. I thought that was the whole point of the Supreme Court opinion.

A: Judge Terry Lewis, who received the case upon remand from the Florida Supreme Court, had already ordered each of the counties to fax him their standards so he could be sure they were uniform. Republican activists repeatedly sent junk faxes to Lewis in order to prevent counties from submitting the standards to Lewis in a way that could justify the vote counting. That succeeded in stalling the process until Justice Scalia could stop the count.

Q: Hmmm. Well, even if those less than 600 difficult-to-tell votes are thrown out, you can still count the other 170,000 votes (or just the 60,000 of them that were never counted) where everyone, even Republicans, agrees the voter's intent is clear, right?

A: Nope.

Q: Why not?

A: No time.

Q: I thought the Supreme Court said the Constitution was more important than speed.

A: It did. It said, "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees."

Q: Well that makes sense. So there's time to count the votes when the intent is clear and everyone is treated equally then. Right?

A: No. The Supreme Court won't allow it.

Q: But they just said that the constitution is more important than speed!

A: You forget. There is the "Gore exception."

Q: Hold on. No time to count legal votes where everyone, even Republicans, agrees the intent is clear? Why not?

A: Because they issued the opinion at 10 p.m. on December 12.

Q: Is December 12 a deadline for counting votes?

A: No. January 6, 2001 is the deadline. In the Election of 1960, Hawaii's votes weren't counted until January 4, 1961

Q: So why is December 12 important?

A: December 12 is a deadline by which Congress can't challenge the results.

Q: What does the Congressional role have to do with the Supreme Court?

A: Nothing. In fact, as of December 13, 2000, some 20 states still hadn't turned in their results.

Q: But I thought ---

A: The Florida Supreme Court had said earlier it would like to complete its work by December 12 to make things easier for Congress. The United States Supreme Court is trying to "help" the Florida Supreme Court out by reversing it and forcing the Florida court to abide by a deadline that everyone agrees is not binding.

Q: But I thought the Florida Court was going to just barely have the votes counted by December 12.

A: They would have made it, but the five conservative justices stopped the recount last Saturday.

Q: Why?

A: Justice Scalia said some of the votes may not be legally counted.

Q: So why not separate the votes into piles -- hanging chads for Gore, indentations for Bush, votes that everyone agrees were intended for Gore or Bush -- so that we know exactly how Florida voted before determining who won? Then, if some ballots (say, indentations) have to be thrown out, the American people will know right away who won Florida? Make sense?

A: Great idea! An intelligent, rational solution to a difficult problem! The US Supreme Court rejected it. They held in stopping the count on December 9 that such counts would be likely to produce election results showing Gore won and that Gore's winning the count would cause "public acceptance" that would "cast[] a cloud" over Bush's "legitimacy" and thereby harm "democratic stability."

Q: In other words, if America knows the truth that Gore won, they won't accept the US Supreme Court making Bush President?

A: Yes.

Q: Is that a legal reason to stop recounts? or a political one?

A: Let's just say in all of American history and all of American law, this is the first time a court has ever refused to count votes in order to protect one candidate's "legitimacy" over another's.

Q: Aren't these conservative justices against judicial activism?

A: Yes, when liberal judges are perceived to have done it.

Q: Well, if the December 12 deadline is not binding, why not count the votes afterward?

A: The US Supreme Court, after conceding the December 12 deadline is not binding, set December 12 as a binding deadline at 10 p.m. on December 12.

Q: Didn't the US Supreme Court condemn the Florida Supreme Court for arbitrarily setting a deadline?

A: Yes.

Q: But, but --

A: Not to worry. The US Supreme Court does not have to follow laws it sets for other courts.

Q: So who caused Florida to miss the December 12 deadline?

A: The Bush lawyers who, before Gore filed a single lawsuit, went to court to stop the recount. The rent-a-mob in Miami that got free Florida vacations for intimidating officials. The constant request for delay by Bush lawyers in Florida courts. And, primarily, the US Supreme Court, which refused to consider Bush's equal protection claim on November 22, 2000, then stopped the recount entirely on December 9, and then, on December 12 at 10 p.m., suddenly accepted the equal protection claim they had rejected three weeks earlier, but complained there was no time left to count the votes in the two hours left before midnight that evening.

Q: So who is punished for this behavior?

A: Gore. And the 50 million plus Americans that voted for him, some 540,000 more than voted for Bush.

Q: You're telling me Florida election laws and precedents existing for a hundred years are now suddenly unconstitutional?

A: Yes. According to the Supreme Court, the Legislature drafted the law in such a messy way that the Florida votes can never be fairly counted. Since Secretary of State Katherine Harris never got around to setting more definitive standards for a counting votes, Gore loses the election.

Q: Does this mean the election laws of any of the other 49 states are unconstitutional as well?

A: Yes, if one logically applies the Supreme Court opinion. The voters of all 50 states use different systems and standards to vote and count votes, and 33 states have the same "clear intent of the voter" standard that the US Supreme Court found illegal in Florida.

Q: Then why aren't the results of these 33 states thrown out?

A: A: Um. Because... um... the Supreme Court doesn't say...

Q: But if Florida's certification includes counts expressly declared by the US Supreme Court to be unconstitutional, we don't know who really won the election there, right?

A: Right.

Q: But then what makes Bush President?

A: Good question. A careful statistical analysis by the Miami Herald extrapolates from the 170,000 uncounted votes in Florida to show Gore clearly won the state and may have done so by as much as 23,000 votes (excluding the butterfly ballot errors). See

Q: So, answer my question: what makes Bush President?

A: Since there was no time left for a re-count based on the non- binding "deadline," the Supreme Court decided not to count the votes that favor Gore. Instead, by a vote of 5 to 4, they picked Bush the winner, based on the flawed count they'd just determined to be unconstitutional.

Q: That's completely bizarre! That sounds like rank political favoritism! Did the justices have any financial interest in the case?

A: Scalia's two sons are both lawyers at law firms working for Bush. Thomas's wife is collecting applications for people who want to work in the Bush administration.

Q: Why didn't they remove themselves from the case?

A: If either had recused himself, the vote would have been 4-4, the Florida Supreme Court decision allowing recounts would have been affirmed, and Scalia said he feared that would mean Gore winning the election. Justices Rehnquist and O'Connor had both said before the election that they wanted to retire but would only do so if a Republican were elected, and when O'Connor heard from early (and, we now know, accurate) exit polls that Gore had won Florida, she responded that was "terrible."

Q: I can't believe the justices acted in such a blatantly political way.

A: Read the opinions for yourself: (December 9 stay stopping the recount) (December 12 opinion)

Q: So what are the consequences of this?

A: The guy who got the most votes in the US, in Florida, and under our Constitution (Al Gore) will lose to America's second choice (George W. Bush), since Bush has won the all-important 5-4 Supreme Court vote, which trumps America's choice.

Q: I thought in a democracy, the guy with the most votes wins. At least in the Electoral College, shouldn't the guy with the most votes in Florida win?

A: Yes. But America in 2000 is no longer a democracy, or even a republic. In America in 2000, the guy with the most US Supreme Court votes wins. That's why we don't need to count the People's votes in Florida.

Q: So what will happen to the Supreme Court when Bush becomes President?

A: He will appoint more justices in the mode of Thomas and Scalia, thus ensuring that the will of the people is less and less respected. Soon lawless justices may constitute 6-3 or even 7-2 on the court.

Q: Is there any way to stop this?

A: YES. No federal judge can be confirmed without a vote in the Senate. It takes 60 votes to break a filibuster. If only 41 of the 50 Democratic Senators stand up to Bush and his Supreme Court and say that they will not approve a single judge appointed by him until a President can be democratically elected in 2004, the judicial reign of terror may end, and one day we can hope to return to the rule of law and the will of the People.

Q: Why can't we impeach the justices?

A: That takes a majority of the House and 2/3 of the Senate and is far more controversial. Don't worry. A 4-year judicial filibuster will definitely get the Court's attention. Indeed, it is probably the only legal and practical way to get the Court's attention.

Q: What can I do to help?

A: Email this article to everyone you know, and write or call your Senator, reminding him or her that Gore beat Bush by more than 540,000 (almost five times Kennedy's margin over Nixon) and that you believe that elections should be determined by counting the People's votes, not the Supreme Court's. Therefore, to stop our unelected federal judiciary from ever again overturning the will of the people, you ask your Senators to confirm NO NEW FEDERAL JUDGES APPOINTED BY A NON-DEMOCRATICALLY ELECTED PRESIDENT until 2004 when a president can be finally chosen by the American people, instead of Antonin Scalia.

Q: Doesn't anyone on the US Supreme Court follow the rule of law?

A: Yes. Read the four dissents. Excerpts below:

Justice John Paul Stevens (Republican appointed by Ford): "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Justice David Souter (Republican appointed by Bush): "Before this Court stayed the effort to [manually recount the ballots] the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all the disputed ballots now.

Justice Ruth Bader Ginsburg (Democrat appointed by Clinton): Chief Justice Rehnquist would "disrupt" Florida's "republican regime." [In other words, democracy in Florida is imperiled.] The court should not let its "untested prophecy" that counting votes is "impractical" "decide the presidency of the United States."

Justice Steven Breyer (Democrat appointed by Clinton): "There is no justification for the majority's remedy ... " We "risk a self-inflicted wound -- a wound that may harm not just the court, but the nation."

Mark H. Levine Attorney at Law


If you live in a state with two Republican Senators (or the disenfranchised District of Columbia with no Senators), I suggest you call these four Democrats: Minority Leader Tom Daschle, Judiciary Chair Patrick Leahy, Senator Ted Kennedy, and Senator Paul Wellstone.


Q: So two last Questions. How did this Q&A get passed around so much?

A: It certainly surprised me. I originally sent it to 15 or 20 people. I think it struck a chord among Americans who saw the media celebrate while their right to vote was swept under the rug, Americans who were concerned the Supreme Court had acted in an overtly political manner but weren't sure because the decision was couched in legalese, and Americans who wanted to fight back but didn't know how.

Q: And who the heck are you anyway?

A: I'm a practicing lawyer in Los Angeles and a graduate of Yale Law School. On Elections Day, I helped voters who were turned away at the polls go back and legally vote.

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Last updated: December 23, 2000 in Hot Metal Pro 6.0