Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and Its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of Law at the University of Utah. Slate asked them to keep a running commentary on the presidential endgame.
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StumbleUponDear Alan,
I thought things were winding down. Wrong again! First a 4-3 decision by the Florida Supreme Court demanding a statewide manual recount. Then a 5-4 decision by the U.S. Supreme Court announcing that it will review the Florida decision, stopping the recount, and ordering an argument for Monday morning.
I cannot believe that the high court would intervene in so dramatic a fashion—endangering the state's ability to complete a recount in time to get the benefit of the Dec. 12 safe-harbor procedure—unless there is a very substantial likelihood that they will overturn the Florida decision.
The Florida court did not repeat its earlier mistake of relying—or seeming to rely—on something other than the state election statute. The court quoted copiously from the statutes and their legislative history. But a closer examination of the opinion shows why the decision is vulnerable to reversal.
While not as brazen as its earlier opinion, this decision was scarcely less radical in its revision of Florida's election statutes. Florida law divides the vote-counting procedure into two phases. During the first phase, county canvassing boards have seven days to count the votes and report the results to the secretary of state. During this time, any candidate may request a manual recount. Decisions about manual recounts are entrusted to the discretion of the county boards, under certain criteria. If a manual recount is conducted, it must extend to "all ballots." The statute expressly states that counting teams must have members of at least two political parties, and that if the counting team "is unable to determine a voter's intent in casting a ballot," the determination is to be made by the county canvassing board.
The counties must report results to the secretary of state by seven days after the election. At this point, the secretary certifies a winner, and the second phase, called the "contest" phase, begins. Within 10 days after certification, according to the statute: "the certification of election ... may be contested in the circuit court by any unsuccessful candidate ... or any [voter] or taxpayer." We are now in that phase.
In the first case before the Florida Supreme Court, there were two possible interpretations of the seven-day statutory deadline. Under one interpretation, the deadline put all vote counting to an end, and the certification would be treated as essentially final. Under the other interpretation, the deadline was simply a deadline for initial certification; manual recounts could continue and could be used as evidence in a subsequent contest proceeding. The Florida Supreme Court implicitly adopted the first interpretation; but because this had the "unreasonable" and "drastic" effect of preventing manual recounts, the court exercised its equitable powers to postpone the deadline to Nov. 26, which it believed would give the counties time to complete manual recounts.
Even under the new deadline, however, neither Palm Beach nor Miami-Dade could complete a manual recount, and the new certified result was the same: Bush won (though by a smaller margin, based on new results in Broward).
Gore filed contests, based on five theories, the most important of which was that Miami-Dade should have completed a manual recount. Judge Sauls rejected all of Gore's arguments on the ground that the boards that made the decisions had not abused their discretion.
Last Friday, the state Supreme Court, voting 4-3, reversed Judge Sauls on the Miami recount issue. The essence of the court's holding is that a contest procedure is not in the nature of "appellate review to determine whether the [county canvassing] Board properly or improperly failed to complete the manual recount." Rather, the contest is a de novo proceeding, meaning one in which the decision under review is given no legal weight, but the circuit court determines for itself whether all votes were properly counted, without regard to the reasons the county boards had for their actions. The determinations of the county board are treated as advisory only.
This decision renders the statutory scheme incoherent. If the decisions of the county boards are given no weight, it was pointless to vest legal discretion in them in the first place. The standard assumption of administrative law is that when a body is entrusted with legal authority, subject to review, the burden is on the person seeking review to show that the decision was improper or unlawful.
More importantly, the Florida court's "interpretation" is very hard to square with the language of the statutes. The statute describes the contest proceeding as one in which the "certification" is "contested," and it makes the county board, whose certified results are being challenged, the defendant. That strongly suggests that the contest proceeding is indeed "appellate" in nature. This is the familiar way in which judicial review of executive action is conducted. Under the court's interpretation, the board's certification is not "contested"; it is merely ignored, and the circuit court is treated as the body with authority to conduct the vote count. The Florida Supreme Court rendered the decisions of the county boards and the secretary of state legally meaningless.
This "interpretation" is very probably unconstitutional under the federal constitution, under the reasoning of the Supreme Court in the last case. Article II, Section 1 provides that electors shall be appointed "in such Manner as the Legislature thereof may direct." Any significant deviation from state statutory law is therefore a federal issue. Under the Florida statutes, authority to determine the results of the election for electors is vested in the county canvassing boards, under the general supervision of the Department of Elections, with all decisions subject to judicial review in accordance with the contest procedures.
Under the Florida Supreme Court's decision, the initial decisions by the county boards and the Department of Elections are given no legal weight. Instead, the judiciary takes upon itself the legal responsibility of deciding whether to conduct manual recounts, of conducting those recounts, and of certifying the winner. (The Florida Supreme Court authorized the circuit court to call upon the resources of the county canvassing boards in its recount, but the Florida Supreme Court made clear that legal authority over the entire process is vested in the Leon County Circuit Court.) Instead of a process in which both branches of government are involved—an initial determination by county executive officials followed by judicial review to ensure that their discretion has not been abused—the Florida Supreme Court adopted a procedure in which one branch of government, the judiciary, has sole discretion to decide all contested questions.
And that is not all. The statute requires that when manual recounts are conducted, the officials must count "all ballots." This is a safeguard to prevent cherry-picking. Moreover, the statutes require that manual recounts be conducted by "counting boards" composed of members of the two parties appointed by the county canvassing board, and they vest authority to determine voter intent in contested cases in the board. Under Friday's ruling, by contrast, the manual recounts are confined to undervotes. (It is particularly mysterious why the court did not include the "overvotes," where the machine—perhaps erroneously—recorded that the voter cast votes for two different candidates. The court provided no explanation.) The counting teams are appointed by the circuit court. There is apparently no requirement that the teams be composed of members of opposite political parties. And the contested decisions will be made by the circuit judges, instead of the county boards (subject to judicial review).
All told, this looks like a substantial change in the law. When the legislature entrusts the vote-counting authority to county officials, subject to judicial review, and the Supreme Court substitutes a procedure in which vote counting is conducted by the courts in the first instance, that is a major change. When the legislature requires that manual recounts be of "all ballots," it is a substantial change to confine the recount to undervotes. It is hard to see how that can be squared with Article II or with the Supreme Court's ruling last week.
As Justice Scalia's opinion explaining the stay noted, a second and independent constitutional issue was raised by the Florida Supreme Court's failure to specify a standard for the counting of the ballots. The court recited that the intent of the voter will control, but that merely states the question. By not specifying the standard, the court guarantees that the statewide recount will not be uniform, which means that it will be constitutionally flawed.
In most states (other than Texas), no vote is registered unless the chad is at least partially disconnected from the card. That used to be the rule in Florida as recently as 1990. Now, however, Palm Beach, Broward, and Miami-Dade counties have included so-called "dimpled chad," which are ballots where the voter failed even to perforate the ballot. Even then they have used two standards. In Palm Beach, they counted only the dimpled chad where there was extrinsic evidence that this was the voter's intent. For example, they counted ballots in which all offices on the ballot contained a "dimple," on the theory that this indicated that the voter was unable to perforate the ballot or unaware of the necessity of doing so. In Broward, by a 2-1 party-line vote, they treated the dimples themselves as evidence of voter intent. For example, even if a voter successfully perforated the ballot for every other race, the board treated a dimple as a vote for president. (For a convincing explanation of why the Broward approach was wrong, see William Saletan's Slate article "Electoral Knowledge.")
There is reason to believe that the results of a manual recount depend on which of the two standards—Palm Beach's or Broward's—is used. (If dimpled ballots are simply treated as non-votes, Bush will easily win.) Jacob Weisberg's analysis suggests that if the Broward County standard were applied statewide in all punch-card counties, Gore would win by 409 votes, while if the Palm Beach standard were applied, Bush would win by 642 votes. So, this issue is obviously important. And it would seem obvious—as the chief justice pointed out in dissent and Justice Scalia confirmed—that if different votes are counted according to different standards, this raises serious equal protection and due process problems.
Indeed, as Kausfiles pointed out on Saturday, this problem is already upon us. The Florida Supreme Court already certified the results of the Palm Beach and Broward manual recounts, which were conducted under different standards. And to make matters worse, it certified the results of a partial recount conducted in the most heavily Democratic precincts of Miami-Dade. The rest of the county (which leans toward Bush) will now be manually recounted, but under a different standard. (In the partial recount, the county board recounted all the ballots and not just the undervotes.) Thus, we know for sure that the Florida Supreme Court has instituted a process that entails different standards for different places and which is therefore probably unconstitutional. It will only get worse when county vote-counters are unleashed to recount all their ballots at a break-neck pace, with no guidance from the court about what standard to use.
Finally, there is the problem of timing. The court has required the manual recount of some 45,000 ballots. (I do not know where this number comes from. The dissenting opinion states that the correct number is 170,000.) This would have to be completed, with all challenges and appeals, by Tuesday, if the "safe harbor" provision of federal law were to be secured. That cannot now be achieved. If the Supreme Court affirms the Florida court and permits the recount to resume, it will have to be completed by Dec. 18, when the electors vote.
At best, that means the process will be rushed and probably disputed and unreliable. (In an ominous ruling, the circuit court appointed observers from the two political parties, but forbade them from speaking—which means that there is no effective means of calling attention to dubious calls.) At worst, it will be impossible.
This was extraordinarily irresponsible on the court's part. If the court believed the statutes require a statewide manual recount, it should have said so weeks ago, to allow time for review of that decision in the Supreme Court and an orderly conduct of the recount itself. The court does not know anything now that it did not know before. Its first opinion declared that there would be a deadline for recounts, on Nov. 26, and in a footnote held that recounts need not be conducted elsewhere in the state. Now, deadlines do not matter, and the recount must be statewide. This change of mind is further evidence that Friday's decision was not based on the laws enacted prior to Election Day, as federal law demands. The Florida court seems to treat the election laws as a work in progress. Next we will see what the U.S. Supreme Court thinks of that.
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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)