Dear Alan,
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StumbleUponI did not mean to suggest that it would be unfair to recount punch-card ballots merely because there are more punch-card ballots in Gore than in Bush counties. (On rereading my note, I can understand why you might have understood me that way, and some readers in "The Fray" did so, too. Sorry to be unclear.) I meant only to make the normative comment that if there are recounts, they should be statewide, and the descriptive comment that this would reduce but not eliminate the Gore advantage from conducting recounts. Presumably, the latter point accounts for why Gov. Bush rejected the vice president's televised offer last night.
You are correct that the objection to recounts is based on concerns that hand counts are "chaotic, subjective, and inaccurate." But I disagree with your comment that "[i]t is hard to imagine that hand counting, which like any system can produce inaccuracies of its own, would replicate the very high level of inaccuracy in the machine counting of punch cards." I do not find it hard to imagine at all. Past battles over human interpretations of ambiguous ballots have often been ugly. Do you remember the debates over the Wyman-Durkin senatorial election in 1974, or the 8th congressional district election in Indiana in 1984? These elections were decided by party-line votes, based on subjective judgments about the appearance of ballots, with little apparent respect for consistency or fairness. Yesterday's decision to allow so-called "dimpled ballots" magnifies the problem, because it eliminates any objective standard for making these determinations. We will see. I hope I am wrong.
The legal spotlight has moved to Secretary of State Harris' decision not to allow post-deadline filings, and the decision by the Court of Appeals for the 11th Circuit to hear the Republican constitutional challenge on an expedited basis. I think it is exceedingly unlikely that the 11th Circuit will intervene in this matter, but I confess I have not read the Republicans' 186-page brief in the case. Life is too short.
Katherine Harris' deadline decision is a closer matter. If I were a betting man, looking at the unanimously Democratic composition of the Florida Supreme Court, I would put my money on reversal. There has been much screaming about the fact that Harris is a Republican and was co-chair of the Florida Bush campaign. (Gore's press secretary called her a "Soviet commissar," and the New York Times has treated her as a major-league punching bag.) This is a bit hypocritical, since decisions at every level in this affair have been made by politicians with partisan commitments—from the Democratic attorney general (Gore's state campaign manager) down to the Palm Beach County election commissioners. The decisions in Broward and Palm Beach counties to conduct hand recounts were made on party-line votes. The Los Angeles Times reports that the flip-flop in Broward County occurred when an independent-minded Democratic judge came under intense pressure by his party to shift his vote in favor of a recount. There is nothing unusual about the Harris situation, and she has done nothing to justify this level of abuse. We need to stop name-calling, recognize that everyone is partisan, and focus on what the law says.
Harris' argument for enforcing the deadline is that the statutory deadline is "unambiguous." Since there have been no allegations that the ballot procedures inspiring the recount were illegal, let alone fraudulent (note that the "butterfly ballot" issue is entirely separate and unrelated from the hand recount issue), she says there is no legal justification for delay. Democrats respond that the statute is not unambiguous, and that this matter is too important to be determined by an arbitrary deadline.
This is what the statute says:
The county canvassing board or a majority thereof shall file the county returns for the election of a federal or state officer with the Department of State immediately after certification of the election results. Returns must be filed by 5 p.m. on the 7th day following the first primary and general election and by 3 p.m. on the 3rd day following the second primary. If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department.
The statute is not a model of clarity. The requirement that counties return results by the deadline is mandatory, and seemingly without exceptions. The county board "shall" file the returns and the returns "must" be filed by the deadline. But the consequence if returns are not filed on time is that the results "may" be ignored and the previous filings "may" be certified. These are ordinarily words of discretion. Thus, both sides can find support for their arguments: The deadline is absolute and unambiguous, but the consequences are not. The final decision will be by the Florida Supreme Court.
That court is composed of seven Democrats. Undoubtedly, that will be the basis for Republican claims that the process is biased, just as Democrats have claimed that the decision by Harris is biased. Maybe so. Judges are human, and anyone who thinks they are apolitical hasn't much experience with judges. But authority to render a final decision must be lodged somewhere, and a perfectly objective, nonpartisan decisionmaking body does not exist on this Earth. The Florida Supreme Court was properly appointed, and they have jurisdiction to review Harris' decision. Judges on the court are constrained, at least to some extent, by written statutes, precedents, and judicial ethics. Unless they do something that is blatantly contrary to the law—which is unlikely when the eyes of the world are upon them—their decision should be accepted as legitimate and, barring unforeseen new legal complications, final. (There do not appear to be federal issues, so the U.S. Supreme Court would not become involved.) Republicans should stop complaining about elections being decided in the courts and hope that their legal arguments are strong enough to carry the day.
On your broader points, I hope we have a chance to chat about the merits of the Electoral College. I sense we may be in agreement that this year's experience actually confirms, rather than undermines, the wisdom of that system. If the press of events slows down for an hour or two, let's talk about that.
I think we also agree that prospects for a successful presidency after this imbroglio are slim. One might think that a 50-50 election would produce bipartisanship, but I strongly suspect the opposite: that whomever is elected president will face intransigent opposition from the other party and ill will among large sectors of the public. I think Gore could survive this climate better than Bush. Bush's stated aspiration to return (if that is the right word) to bipartisanship and civility in Washington is almost certainly doomed, and I find it difficult to envision him as an effective political street fighter. Gore's stated intention to "fight, fight, fight" against the evil special interests will be easier to fulfill. And when the congressional Republicans fight back, my guess is that they can be out-spun and out-mediaed. The last six years have shown how poor they are in the art of public relations. So, while I am inclined to agree with you that a Bush presidency under these circumstances may not be worth the candle, Gore is somewhat more likely to thrive in the poisonously partisan atmosphere of the next four years.
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Reader Comments from The Fray:
Michael McConnell argues that even a state-wide hand count might give Gore an unfair advantage, because the questionable punch card ballots were used predominantly in counties that heavily supported Gore. But his logic is flawed; he forgets that the argument for a hand recount--widespread undervoting that a human eye might correct--has already taken this very discrepancy into account. Though the hand recount would most likely discover a larger number of new votes for Gore than Bush because of the problems with punch cards, the inverse is true for the current machine count: Bush has been unfairly over-represented by his support in counties with more technologically advanced voting systems. It is not necessarily improper to concentrate energy on hand recounts in punch card counties, since they are the ones in which problems with unread votes are more likely. While I can't think of any serious argument against a state-wide hand count (except for the question about hand count subjectivity which might be dealt with by simple guidelines), the problem now is simply that the Republicans have argued for too long against hand counting at all, and are thus unable to concede this clear, proper compromise.
--Jared White
(To reply, click here.)
I believe that the hand recount is conducted, ballot by ballot, with a representative of both political parties, both of whom must agree on the party for whom each vote was cast. Any ballot that the two person team does not agree on is then reviewed by a three member panel of non-partisans. My point is simply that the recount is not a subjective as one might think. Since one of the candidates campaigned on the slogan that he "trusts the people" and the other has indicated a willingness to trust the people on this issue, I am surprised there is a problem.
--Carrie McLain
(To reply, click here.)
A way out: the Burr-Hamilton solution.
--APM
(To reply, click here.)
(11/15)
Reader Comments from The Fray:
I find it amusing that the Democrats are telling President-elect Bush that the only way he can succeed is to adopt their agenda.
The popular vote, as close as it was, could have swung Bush's way if it was recounted as Florida was. If California and all the voter irregularity in the excessively liberal and populous states were taken out of the picture, the popular vote across the nation was significantly more for Bush. It presents a more accurate picture of America as a whole to view the popular vote minus California. That's the reason for the Electoral College.
Democrats should be looking and asking themselves why they blew this election rather than deluding themselves that it was stolen. Look within. The liberal lies and scare-mongering, and class warfare language and willingness to depart from the law in order to win at any costs is not going to serve America or the Democratic party well. When America has more time to reflect on the days since the election, the Democrats will not fare so well. That is why the Democrats are trying still to deflect attention from their failures.
Vice-President Gore gave a noble speech last night. For the first time in this election process I gained respect for him. He was finally speaking honestly. Liberals should try honesty instead of distortion and manipulation more often.
--Mark Sherman
(To reply, click here.)
Sorry, but I don't see true bipartisanship happening. The division you see has been growing for decades. It isn't between skinheads or klansmen and 'good honest Americans,' it is between those who are willing to be responsible for themselves, and those who've been inculcated with the idea that they have a god-given right to the fruits of someone else's labor. The Dems have done the indoctrinating, and those of us who flocked to the personal freedom stances of 60's Democratic candidates are appalled at how the current flock of Democrat candidates have taken full advantage of the 'buy a vote with welfare' techniques they've developed over the years. I have predicted class warfare by 2010 since 1975. I may be off a couple years, but dramatic changes are in order
--Dennis Jacques
(To reply, click here.)
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Reader Comments from The Fray:
I disagree that what the Supreme Court faces is less compelling than Dred Scott. It's time to get past all this rhetoric and look at what we, as citizens, are being dealt. First of all, forget all the pious cant about the wisdom of the founding fathers. The Constitution was never a document that guaranteed democracy in this country, since the founding fathers' didn't want democracy. They didn't want people to be able to vote for the president, that was the job for politicians. Jefferson himself wrote "the people is an ass." While they may have been against British rule, they were in no shape or form democrats in light of the term today. And the Republicans are not such great believers in democracy today. If they were, they would have worked to get an accurate count in Florida. The Supremes are either going to yank us into the present, for those "asses" like myself, of haul us back into the past. That is the Constitutional issue at stake.
--George Grella
(To reply, click here.)
As we await the Supreme Court's decision, I stand astonished. Not that the Supreme Court delved into the 'miasma' of this election dispute--it is not such a bad idea for the last word of the land to have the last word; what astonished me was Scalia's stated reason for the stay granted. The stay itself was not such a bad idea (I voted for Gore, by the way). The decision needed to be made before there were facts on the ground so that no one felt any more robbed than they already do. However, Scalia's unprecedented indication that he has already made up his mind before even receiving a brief must have ruffled some of his colleague's feathers and perhaps created an environment that may well send the 'swing justices'--Kennedy and O'Connor--into the arms of the solid opposition. Scalia's statement may well turn out to be a self-fulfilling anti-prophecy.
It would be most astonishing if any decision were 5 to 4. I think it is more likely that there will be a more solid majority behind some sort of solomonic solution. One hopes that the court will be very, very cautious not to create law itself.
--Rabbi Jason
(To reply, click here.)
In our world of constant disorder, why is it so surprising that the old technology-based society is colliding with the new tech order? We are transforming our entire society to the new tech order. Many systems have not made the transition. Voting processes and systems are at the top of the list right now. This collision must take place and the new tech order take its proper place in this function of our society. Laws must change to support the new order. For now, the courts must decide the outcome based on our current technology and laws. We must invest the next four years and make our voting systems capable of supporting our transforming society, and build new law in this process.
--Steve R
(To reply, click here.)
(12/11)