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Faithless Elector Watch: The Dimple Dilemma

Timothy Noah
Posted Friday, Nov. 24, 2000, at 2:43 PM ET

You turn your back on this story for five minutes, and all the facts change on you. On Wednesday Chatterbox wrote that the Nov. 21 Florida Supreme Court decision "could clear the way for a dimpled-chad Gore victory." Now the abrupt end to the Miami-Dade recount makes that possibility more remote. What's more, the very legitimacy of a dimpled-chad victory is being called into question. On Tuesday night, James Baker said that the Illinois court decision embraced by the Gore forces (and alluded to vaguely in the Florida Supreme Court decision) had to do with hanging chad, not dimpled chad. Everybody (including Chatterbox) assumed Baker didn't know what he was talking about. Two days later, the Chicago Tribune published a story by Jan Crawford Greenburg and Dan Mihalopoulos showing that Baker was right. How annoying! Then, today, the Washington Post carries a story by John Mintz revealing that although dimpled chad are considered countable in Texas, they are almost never considered acceptable anywhere else. And even the Texas law allowing dimpled chad predates Bush's governorship! Doubly annoying!

This new information doesn't give much moral boost to Gore's reported next move should he lose the hand recount, which is to contest the election. Pressure seems to be mounting for Gore to give it up if he isn't ahead on Monday. But there remains the gambit of trying to persuade Republican electors to ditch Bush for Gore on the grounds that Gore won the popular vote nationally. (The latest to join the burgeoning Electoral College Naughtiness Caucus is Gregg Easterbrook of the New Republic.) Although Chatterbox remains agnostic-but-intrigued by this option, he believes it to be vastly superior to Gore's challenging a certified Florida victory. Why? For starters, the court precedents are gratifyingly favorable. Faithless electors in years past have not had their votes tossed out by judges. Also, challenging a certified election would seem sufficiently contentious that the moral difference between honoring Florida voters' will and not doing so would be muddied beyond recognition. Finally, a rumble in the Electoral College would be beneficial even if Gore lost because it would demonstrate what mischief this odd institution might do and thereby increase pressure to get rid of it

Down-and-dirty suggestion: In making the case to Bush electors, Gore supporters might point out that the steadying hand of Dick Cheney on a Dubya presidency can't be depended on, in view of Cheney's Thanksgiving heart attack.

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Reader Comment from The Fray:


It's frustrating to be reduced to commenting on the court battle via The Fray. Dimpled chad has been the real battle from day 2. Texas is not the only state that counts it. In an infamous House primary in Massachusetts in 1996, the losing Democrat (who was the party's choice) went to court to challenge the 175-vote post-recount victory of an insurgent Democrat. A Massachusetts Superior Court judge took it upon herself to examine all 956 uncounted ballots. She then decided that there were sufficient indentations on all but 37 of them to award them as votes, with the former loser getting over 600 of them and becoming the winner.

The case then went to the Massachusetts Supreme Judicial Court ("SJC"), which not only unanimously upheld that minimal indentations were votes but counted the votes itself, too. It decided that 23 of the 37 votes had enough marking (scratching) on them to be counted as votes. In a development that should have warned the court of the slippery slope it had started down, it also disagreed with the judge on 5 of the votes she awarded. But the net result was that the former loser became the winner, and that man, William Delahunt, was just re-elected to his third term in the House this month.

Massachusetts, meanwhile, was troubled enough by the judicial intervention into the voting process that punch-card ballots were banned from the state in 1998.

The case is Delahunt v. Johnston, and the SJC ruling can be found at either 423 Mass. 731 or at 671 N.E.2d 1241 (1996). And guess what? Gore's lead lawyer in Palm Beach County is Dennis Newman from Massachusetts, who lost that case (yes, he argued that dimples shouldn't count). Another Gore lawyer there is Haskell Kassler from Massachusetts, who won the case. Tim, can you come up with another explanation for those people being there (and having been there since the day after the vote) other than the Gore expectation that their specialized knowledge of court actions on dimpled chad, which you correctly point out that few places count, would be critical?

--Paul Decker

(To reply, click here.)


Re: Cheney's health. Fortunately, electors vote for the President and Vice President on separate ballots, as does Congress in the event there is not "a majority of the whole number of electors appointed."

It's not beyond the bounds of possibility that the sonuvabush could carry the day but not his running mate. Does that mean that James Baker, he of the overheated rhetoric and defender of the "free speech rights" or orchestrated outside agitators, would be next in line for leadership of the Free World?

--Tom Collins

(To reply, click here.)


The prospect of a couple of Republican electors defecting to vote for Gore is indeed remote, given the way that parties nominate electors. A more likely scenario is that a couple of Republican electors defect to vote for some other Republican, say Colin Powell.

The reasons for throwing the election in to the House could be (1) to provide a decisive result rather than an indecisive one, (2) to highlight the antiquated electoral process that gives undue influence to small states, or (3) hoping that the third party (eg Powell) might actually be elected.

If nobody has a majority of the electoral votes cast, according to the 12th Amendment, the House must choose among the top three electoral vote-getters. Knowing that Gore could not possibly win in the House where each state has one vote and 26 votes are required to win, most Democrats would rather trust Powell than Bush to govern and to make upcoming Supreme Court appointments. In such a scenario, it would take only a few Republican Representatives in small states or closely divided states to prefer Powell over Bush in order to elect Powell President (who would probably begin an administration with much more good will than either Bush or Gore could command at this point).

--James J. Pottmyer

(To reply, click here.)

(11/25)

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