The Legal Challenges
The law is a ass, Dickens wrote. Not really. A close look at the statutes and rulings shows a method to the madness
Adam Cohen With reporting by Viveca Novak/Washington and Amanda Ripley/Tallahassee
When it became clear what a mess Florida was, both the Gore and
Bush campaigns put out a nationwide dragnet for lawyers to help
them fight for the state. We are a nation of laws, and there
seems to be no limit to the constitutional provisions, statutes,
court precedents and common-law principles that may be called
upon to determine who will be the next President. The legal
battle so far has taken in issues as majestic as the 12th
Amendment to the U.S. Constitution and as humble as the status
of the now famous dimpled chad.
CHADS AND DIMPLES
--In the hand recounts, what standards should be used to
determine the intent of the voter?
Democrats say election officials must count any ballot for which
they can reasonably determine the voter's intent, including
dimpled chads--ballots on which a box for a candidate was indented
but not actually pierced. The Republicans argue that voting
machines are more reliable than humans and that no ballot should
count if it doesn't register in a machine tabulation.
The Florida Supreme Court ordered Florida secretary of state
Katherine Harris to accept manual recounts, but declined to give
local boards guidance on chads. The court did, however,
approvingly cite a 1990 ruling by the Illinois Supreme Court:
"Where the intention of the voter can be ascertained with
reasonable certainty from his ballot, that intention will be
given effect even though the ballot is not strictly in conformity
with the law." The Illinois high court examined 27 ballots with
dimpled chads and held that eight of them were valid votes--enough
to decide that election.
Other states have held that dimpled chads may be counted. A
famous case involved Congressman William Delahunt, who owes his
seat to a Massachusetts judicial court's decision in 1996 to
count dimpled chads, giving him a victory in a race in which he
had been trailing by more than 200 votes. A Louisiana court
refused to count chads in 1984, as did a lower court in Ohio in
1998. But a Texas statute expressly says a ballot can be counted
where "an indentation on the chad from the stylus or other object
is present and indicates a clearly ascertainable intent of the
voter to vote." A 1997 amendment, signed by Governor Bush, favors
a manual recount of disputed votes above a machine recount.
Under Florida law, local canvassing boards have a lot of
discretion. Palm Beach County circuit-court judge Jorge Labarga
ruled that dimpled chads should count as long as the board could
discern the voter's intent. The board has apparently stuck to a
restrictive approach, not counting dimples in the presidential
race if a voter made full holes in other races on the ballot. Its
reasoning: a voter who left dimples in many races probably had
trouble punching clear holes. But a voter who left a dimple only
in the presidential race may have been reluctant to vote in that
one race.
Democrats counter that the Palm Beach equipment made it
particularly hard to punch through the presidential column and
that any dent clearly shows intent. At a hearing on Friday, they
brought in a developer of the system and others to testify on why
it was harder to punch holes in the presidential column. Gore has
said that if he loses partly because these dimpled chads were not
counted, he will make it part of his suit contesting the
election.
Broward County has adopted a looser standard. Its board is
counting dimpled chads even when the rest of the ballot contains
clean holes, and is even taking into consideration which party
the voter supported in other races.
MIAMI-DADE'S FIASCO
--After the state supreme court approved the hand recounts,
Miami-Dade abandoned its recount because it saw no way to
complete it. Did Miami-Dade have that right?
Democrats believe a hand recount there could have provided
Gore's margin of victory. They argue that once the canvassing
board found a tabulation error, it was required to conduct a
full manual recount. Last Thursday the Florida Supreme Court
refused to order Miami-Dade to keep counting. But it ruled
without prejudice, meaning it can still revisit the issue and
Democrats intend to contest that decision this week. Democrats
charge that the county board stopped because of intimidation
from a boisterous Republican protest at its offices, and a board
member said at one point the protests played a role in the
decision to stop counting. Six Democratic Congressmen have
written to the Justice Department charging that this
intimidation was a violation of the Voting Rights Act.
Before Miami-Dade stopped counting, the board had found 156
additional votes for Gore. When it halted the count, the board
said it would not be adding those votes to its previous tallies.
The Democrats have challenged this decision, arguing that once a
canvassing board has identified legal votes, it has no discretion
to toss them aside.
SEPARATION OF POWERS
--Did the Florida Supreme Court usurp the executive power of the
secretary of state and the legislative power of the legislature?
Katherine Harris argued that Florida election law gave her
discretion, as the state's chief election official, to reject
amended vote totals submitted by counties after the seven-day
deadline set by statute. The Florida Supreme Court agreed that
Harris had discretion to reject the new totals, but it ruled that
she had abused it. Harris had the right to reject the recounts,
the court held, only if they were submitted so late that
including them would prevent a candidate from contesting the
results or preclude Florida from qualifying its electors in time.
This standard does not quite make Harris' function merely
"ministerial," as the Democrats argued in the supreme court, but
Republicans argue that it breaches her powers as an elected
official.
The U.S. Constitution gives each state's legislature the power to
determine how presidential electors will be chosen, and the
Republicans argue that the state court usurped that role in
deciding that the seven-day deadline for certification was not
binding. "The court rewrote the law," Bush said last week.
State supreme courts are generally the definitive interpreters
of state election law, and in this case the Florida court
declared that it had to resolve two conflicting legislative
provisions. Section 102.111 states that county returns not
received by the secretary of state by 5 p.m. of the seventh day
following an election shall be ignored. But Section 102.166(1)
provides that losing candidates have the right to ask for
recounts up until the time the local board certifies its
results. Many counties, particularly large ones like Miami-Dade,
might not be able to conduct full manual recounts if the
seven-day deadline were strictly enforced. Given this conflict,
the high court ruled that it had to give precedent to
determining accurately the will of the voters.
Among the issues the U.S. Supreme Court has decided to consider
is whether the Florida court violated federal law by changing the
state's election laws after the voting. Democrats insist that
resolving the conflicting provisions did not amount to rewriting
the law. Somewhat ironically, they also find themselves on the
side of states' rights in arguing against the Republicans that
state rather than federal courts should be the final arbiter of
state election laws. Bush brought the case to the Supreme Court,
and it might be considered moot if he's the top vote getter in
the later as well as earlier tallies.
ABSENTEE BALLOTS
--Will uncounted absentee ballots now be counted?
The Republicans are fighting to reinstate absentee ballots, many
from overseas military personnel, that were rejected on
technical grounds. In this fight, the Republicans and Democrats
have switched their usual positions. The Democrats want the
election law applied strictly. The Republicans are arguing for
more lenient rules.
At stake are perhaps hundreds of ballots sent in by military
voters that lack a postmark. Florida law requires that ballots be
postmarked no later than Election Day. But Republicans argue that
military voters sometimes have no control over when and how their
mail gets postmarked.
The Republicans filed a lawsuit last week in Leon County to
compel 14 predominantly Republican counties to get these ballots
counted. The Republicans contend that the Democrats had a
systematic plan to disenfranchise military voters; the Democrats
say they were only making sure that illegal ballots were not
counted. The argument that military voters should not be
disenfranchised because of factors beyond their control is a
solid one, and it has great p.r. value. The Leon County judge
listened patiently to the Bush arguments on Friday but then
expressed skepticism about whether there was much he could do at
this point. The next day the Republicans dropped that lawsuit and
decided to sue several counties directly. The canvassing boards
in some of those counties have re-examined their absentee
ballots, giving Bush a net gain of dozens of votes over the
weekend.
Many absentee ballots that have not been counted were rejected
for legitimate reasons. Some were cast by voters who showed up to
vote in person on Election Day. Others were not signed. It is
unlikely that absentee ballots with serious flaws like these will
be counted. Perhaps most difficult are the unknown number of
absentee ballots thrown out because rushed election workers could
not read the handwriting or decided that the signature on the
absentee ballot did not match one on file in the election
records.
The Democrats have an absentee-ballot challenge of their own. In
Seminole County, a Republican election official allowed
Republican functionaries to work out of the election office,
adding required information on thousands of absentee-ballot
applications that had not been provided by the voters. Democrats
have gone to court to challenge all 15,000 absentee votes cast in
the county.
THE CONTEST PHASE
--What is a candidate's recourse once the votes have been
certified?
Florida law allows the losing side to "contest" the results of an
election only after they are certified. At this stage, the
disputes move from the local canvassing board to the courts. The
procedure calls for holding a hearing in circuit court, at which
witnesses can testify and evidence can be presented. If the
Democrats contest, they could present testimony ranging from Palm
Beach voters saying they were confused by the butterfly ballot to
members of the Miami-Dade canvassing board saying they were
intimidated into dropping their manual recount. Democrats could
also present statisticians to argue that some of the reported
results--like the number of votes for Pat Buchanan in Palm Beach
County or the number of voters who did not make a choice for
President--are statistically unlikely.
The judge hearing the case may investigate the allegations and
"provide any relief appropriate under the circumstances." That
appears to be broad authority, but it is unclear what a judge
would actually do at this point. A separate Palm Beach County
lawsuit asking for a new election there has already been denied,
and in any case, there would be little time for one. Similarly,
the claims by black voters that they were impeded in voting would
be difficult to address at this point without ordering a new
election. A court might be more likely to take action with
respect to existing ballots, such as ordering that the 156 votes
already counted in Miami-Dade be added to the totals.
If the Democrats contest the election as planned, the halted
recount in Miami-Dade County will be a central part of their
case. The intimidation claim gives them what they see as the
moral high ground. They believe they can recover a large number
of votes in Miami-Dade if the recount goes forward. If a court
finds that the canvassing board was illegally intimidated, it can
order that those ballots be counted, either by directing the
board to do so or by appointing a special master to take charge.
The Democrats may also challenge the Nassau County canvassing
board's decision to certify results from election night rather
than from a machine recount that gave Gore an additional 52
votes.
THE LEGISLATURE'S ROLE
--Can the Florida legislature choose which electors to send to
the Electoral College?
A 1948 federal statute holds that when the outcome of a
presidential race is in doubt, a state's presidential electors
"may be appointed...in such a manner as the legislature of such
state may direct." Florida speaker of the house Tom Feeney
ordered up a legal analysis that concludes that the legislature
has the right to step in and select the state's 25 electors. If
the outcome remains in doubt as the Dec. 12 deadline approaches,
the Republican-dominated legislature may attempt simply to select
the Bush electors. A more radical possibility is that if Gore is
ahead of Bush in the final count, the legislature could overturn
that result and certify the Bush electors.
No legislature has ever used the 1948 law to select electors, and
it is not clear if the American public would accept it. Another
potential minefield: passing a bill to select electors would
require the approval of Governor Jeb Bush, the candidate's
brother.
EQUAL PROTECTION
--Do hand recounts in some counties but not others violate the
U.S. Constitution's guarantee of equal protection?
The Bush camp argued in federal court that ordering manual
recounts in four counties selected by the Gore campaign denies
equal protection of the law to voters in counties where no
recounts have been ordered. In their briefs, the Republicans cite
one-person, one-vote cases like Baker v. Carr, which struck down
apportionment schemes that gave heavily populated urban districts
the same representation as less populated rural ones. Here the
Republicans flip the doctrine, saying that by ordering recounts
in populous counties, the Gore campaign is depriving less
populated counties of their right to equal representation.
The one-person, one-vote cases were aimed at laws that expressly
gave some voters more representation than others. Florida's
recount law, on the other hand, is designed to ensure that all
voters in the state get the same vote. A recount should not give
a county's voters more or less representation; it should simply
ensure that everyone who cast a valid ballot is given a vote.
The two lower federal courts that heard the Republican
equal-protection claim quickly dismissed it. When the U.S.
Supreme Court accepted Bush's appeal last week on several other
issues, it declined to hear that one.
CHECKS AND BALANCES
--Who would decide if Florida's branches of government don't
agree?
One weakness of America's checks-and-balances system is the
possibility of a constitutional crisis when any two branches of
government are locked in conflict. It is conceivable that the
Florida Supreme Court, which is heavily Democratic, and the
Florida legislature, which is heavily Republican, could reach a
deadlock about which set of electors rightfully represents the
state.
In 1803 the U.S. Supreme Court held in Marbury v. Madison that in
conflicts between the branches, the judicial branch has the final
word. That principle applies at the state level as well. State
courts regularly strike down laws passed by state legislatures
and issue orders that are binding on Governors. That means that,
presumptively, a ruling of the Florida Supreme Court would trump
an act of the Florida legislature. But if the two branches
reached an irresolvable impasse on a matter as important as a
presidential election, it is probable that the U.S. Supreme Court
would find a reason to come in and break the deadlock.
FINAL ARBITER
--What role will the U.S. Congress play?
The U.S. House and Senate will meet in what is usually a routine
joint session on Jan. 5 or 6 to count the Electoral College vote.
If the Florida results are still at issue, an 1887 law permits
the House and Senate, by a majority vote in each, to throw out
Florida's electors. One reading of the 12th Amendment holds that
Gore would then become President: he would have a majority of the
remaining electors. But another reading says the election would
then be thrown to the House to decide. In that case, each state
would cast one vote, determined by the U.S. Representatives from
that state. A majority of the congressional delegations, 28, are
Republican. If a President were chosen in this manner, the U.S.
Senate would then select the Vice President. The Senate will be
evenly divided, 50-50, if Democrat Maria Cantwell hangs on after
this week's recount in Washington State.
The last time Congress decided a dispute between electors was in
1960, when Richard Nixon won the initial count in Hawaii and John
Kennedy won the recount. But little was at stake then, since
Kennedy already had the Electoral College votes he needed.
Presumably, the Republican-dominated House would be inclined to
select Bush. The prospect of Congress selecting the next
President is odd enough. Making it even more surreal: the
presiding officer at such a proceeding would be Vice President Al
Gore.
--With reporting by Viveca Novak/Washington and Amanda
Ripley/Tallahassee
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