From the WSJ Opinion Archives
ELECTION 2000
Supremely Ill-Judged
Why did the court ignore rules everyone agrees are constitutional?
One sentence of the Florida Supreme Court's decision on hand recounts tells it all: "The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle."
That is like saying, of a disputed umpire call in the World Series: "Athletic superiority, not a hyper-technical reliance upon the rules of baseball, should be our guiding principle." In our system, the will of the people is manifested through procedures specified in advance. When those rules are changed in mid-stream, something has gone terribly wrong.
If any counties fail to report on time, one section of the law states that "all missing counties shall be ignored," and another that "such returns may be ignored." As the Florida Supreme Court pointed out on Tuesday night, these provisions are inconsistent. But the court purported to reconcile the "shall" with the "may" by holding that late returns may not be ignored. It did this because it believed that enforcement of the statutory deadline would be "a drastic measure," and that to "disenfranchise electors" on account of the statutory deadline would be "unreasonable" and "unnecessary."
But since the legislature made the rules, and no one claimed they were unconstitutional, the court's opinion about their wisdom or necessity should have been irrelevant. Presumably, the rules could work to one side's advantage in one election and the other side's advantage in another election. Can you imagine the screams from the Gore campaign if votes cast in favor of George W. Bush had been counted after a statutory deadline?
In any event, the deadline is far from "unnecessary." Under Florida law, all voters have 10 days after the initial certification of election results to contest it. (In my opinion, perhaps contrary to the Republicans' arguments, the manual recounts can proceed and, if they are validated and demonstrate a change in the result, could be the basis for such a contest. Despite their high potential for arbitrariness and even fraud, manual recounts, like deadlines, are a feature of the Florida law.) Those contests will take time to adjudicate.
Thousands of ballots have already been put aside in Broward and Palm Beach counties because the voter's intent is not clearly ascertainable. Fortunately, Miami-Dade is now out of the picture. But the suspect ballots in the two other counties may well determine the election.
Some of the questionable ballots have "dimples" in the spots for more than one presidential candidate, yet Democrats say they should be counted for Al Gore. Some of the ballots have clear votes (no dimples, no hanging chads) for every other office on the ballot, but a dimple in the presidential vote. Such a voter obviously knows how to cast a vote. The failure to perforate the ballot in the presidential vote most likely means the voters decided, at the last moment, that they didn't like any of the candidates. Yet Democrats say these votes should be counted for Mr. Gore.
Indeed, while there may be individual cases where a dimple "clearly reflects the voter's intent" (in the language of the Florida Supreme Court), such as where the entire ballot is filled with dimples, in most cases there is an insoluble ambiguity. No one knows whether the voter intended to cast a vote, or changed his mind. Presumably, that is why the canvassing boards initially decided not to count them. Yet Gore lawyers have gone to court to demand that all dimpled ballots be counted.
The absentee ballot issue is also yet to be resolved. Over a thousand absentee ballots--many of them from military voters--have been excluded, despite being properly signed and dated, because foreign post offices failed to postmark them, or the postmark was smudged, or postmarks are not available. Even Sen. Joe Lieberman and Florida Attorney General Robert Butterworth have conceded that this is unacceptable. But nothing has been done. Will it require yet another lawsuit to ensure that "the voter's intent" counts, even when it likely favors Mr. Bush?
Moreover, if Republican allegations have any substance, there will be charges and countercharges of fraud and mishandling of ballots. With 2-1 Democratic majorities on the county canvassing boards (and the sole Republican having resigned in one of the counties), there is every reason to suspect that many of the disputed ballot decisions will reflect unintentional bias, at best. To achieve a "full, fair, and accurate count" (in Mr. Gore's language) there must be ample opportunity for GOP observers to get a fair hearing.
Resolving these thousands of disputes will not be a speedy process. That is why the Florida statutory scheme, so casually dismissed by the court, made sense. Under that scheme, counties have seven days to certify an initial result. Voters then have 10 days to file protests. That gives a total of 17 days for counts and recounts, and leaves about a three-week period for full consideration of contests.
The Florida Supreme Court, by fiat, has reduced the time for review of these difficult questions by at least eight days. Now, contests can be initiated as late as Dec. 6, 10 days after the court's arbitrary deadline. Electors must be chosen by Dec. 12. That leaves less than a week for the real issues of this election to be adjudicated. It is hard to see how that can be done, at least with any pretense of fairness.
At this point--and thanks in no small part to the Florida Supreme Court's decision to supersede the statute--there are two possible scenarios, neither of them happy.
In one scenario, the Democrats succeed in treating virtually all the dimpled ballots as valid votes, despite their inherent ambiguity. If that occurs, it will be evident to the American people that the results of the Florida count did not reflect "the will of the people," but only the inexorable process of finding more Gore votes, no matter what.
Under either scenario, the Florida legislature will be tempted to interfere, to ensure that the Florida vote tally is conducted in accordance with the law. Since the legislature is a political body, with a Republican majority, such a step will be enormously controversial. It should only be a last step, to be entertained only if the alternative is either manifest error or inability to choose electors. It would have been far better for the Florida Supreme Court to resist the temptation to rewrite the state's laws, and to leave in place a system that--however imperfect--could have reached a result that fair-minded Americans could view as legitimate.
Return to "The Works of Michael McConnell"
Mr. McConnell is a professor at the University of Utah College of Law.
