Steal This Election

I've been resisting the conclusion that either side is trying to steal the presidential election, if only because it sounds so intemperate. But based on the statements made by the two candidates on national television last night, it does seem to me that Al Gore is seeking an equitable outcome while George W. Bush is trying to grab the presidency of the United States with minimal regard for law, precedent, or elemental fairness.

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The Bush campaign's current position is that vote counting by hand is less accurate than counting by machine, unconstitutional per se, and intrinsically unfair. Let's examine each of these claims in turn.

Accuracy

Here's what Bush said last night: "Manual counting, with individuals making subjective decisions about voter intent, introduces human error and politics into the vote counting process. Each time these voting cards are handled, the potential for errors multiplies."

Nonsense. Hand counting has long been accepted as the ultimate standard for tabulating punch-card ballots in close elections. In 1988, The New Yorker published one of those incredibly long and boring articles it used to be known for in the pre-Tina Brown days about the history of punch-card voting. It's now extremely useful. "Votomatic" machines evolved from the original IBM punch-card computers and became prevalent in the 1960s. The author of the article, Ronnie Dugger, quotes a pioneer in the field, one Ken Hazlett, on the flaw that just ate a presidential election: Punch-card readers cannot detect choices in many cases where the tiny paper rectangles known as chad are not fully detached from their cards. "Hanging chad has been with us since the invention of the Votomatic," Hazlett told Dugger.

There is, however, a cure for this systemic flaw, the 1988 article suggests. In a close election, you supplement machine tabulation with a hand count of "undervoted" ballots where no selection is mechanically detected. Counting in this way doesn't "introduce" human error, which may well already be present in the programming, set-up, or use of punch-card voting equipment. It uses human precision to correct an inevitable machine error. And when you understand a bit about the way punch-card voting works, the Bush campaign's claim about handling of ballots detaching chad evaporates. Handling a ballot does not detach a chad unless the chad is already partially detached. And the clear rule in state after state is that a partially detached chad counts as a valid vote.

It is true that standards vary from place to place about what kind of partially punched cards count as valid votes. In many states, the chad has to be punctured or detached in some way. Texas is more lenient. Under the election law Bush signed in 1997, undetached "dimpled" or "pregnant" chad are good enough. Florida election law is ambiguous on whether the indented chad should be counted, and there may be variations in interpretation even from county to county. But this range of possibilities means neither that there are no standards of counting punch-card ballots by hand nor that judgments about what votes count are purely subjective. These minor variations in a recondite corner of election are merely part of the tapestry of federalism so admired by George W. Bush. As for the specter of fraud, that would seem to be a small risk with the examination of ballots taking place under the watchful eye of representatives from the two political parties, election judges, law enforcement officials, and the national media.

Law

The Bush campaign has now gone to the U.S. Court of Appeals with its argument that state laws, such as the one Bush himself signed providing for hand recounts, violate the U.S. Constitution. Essentially, Bush's lawyers are saying that to recount some votes by hand but not others violates the equal protection clause of the 14th Amendment. What makes this claim ridiculous is that the same Bush campaign has declined to ask for a hand recount in all Florida counties. This really does invoke the proverbial definition of chutzpah--shooting your parents and then asking the court for mercy because you're an orphan.

But the Bush claim isn't just a reach. It actually cuts against at least one federal precedent that suggests not recounting punch-card ballots by hand in a close election violates the 14th Amendment. The Dugger article recounts a 1987 federal lawsuit brought by a black candidate for president of the St. Louis Board of Alderman who lost by .25 percent of the vote. The basis of his claim was evidence that the Votomatic machines used in the election were two to four times more likely to not count black votes than white votes. In that case, a federal judge ruled that punch-card voting machines denied blacks an equal opportunity to participate in the political process. The remedy he ordered was a hand recount.

Bush's only plausible legal claim is a far more technical one: that Secretary of State Katherine Harris, who originally claimed she had no power to accept recounts more than a week after the election, properly exercised the discretion that a court ruled she does have in choosing to not count the late votes. Trying to stop the county recounts and then rejecting those counts for lateness was another bit of chutzpah, which is part of the reason that I doubt Harris' made-to-order standard will survive scrutiny in the Florida courts. But here the Bush side has a prayer of lucking out.

Fairness

Counting hanging chad ballots is legal, conventional, and necessary from the point of view of fairness. Hanging chad votes are supposed to count. To ignore them in a case where they could be decisive would be an enormous injustice. If fair elections mean anything, they mean counting all valid votes. I'm not sure why the Gore side hasn't done a better job making this simple point. Perhaps part of the reason is that, as Kausfiles notes, a statewide hand recount stands a good chance of coming out in Bush's favor. The Gore folks were hoping to get away with a shortcut of their own by arguing only for the narrower recount in their best counties. But belatedly, at least, Gore has recognized that the only fair outcome to the dispute would be a statewide hand recount. In his statement last night, Gore said he was prepared to abide by the result of a hand recount in all Florida counties and would "agree not to take any legal action to challenge the result" if Bush would agree likewise.

But Bush won't agree to Gore's offer, even though he would still stand a good chance of winning. Why? Because he'd rather take the better odds of victory that he might get from insisting on a technicality arbitrarily enforced by a party hack. He thinks he's taking less of a risk, but I'd argue he's taking more of one. If Bush wins by ruling what would have been valid, decisive votes out of order, much of the country will regard his presidency as illegitimate, and rightly so.

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Jacob Weisberg is chairman and editor-in-chief of the Slate Group and author of The Bush Tragedy. Follow him at http://twitter.com/jacobwe.

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