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The Disenfranchisement Fallacy

By William Saletan
Posted Thursday, Dec. 14, 2000, at 12:00 AM ET

For weeks, Al Gore and his surrogates have complained that if an ambiguously marked ballot isn't counted as a vote for one presidential candidate or the other, the voter who cast that ballot will be "disenfranchised." George W. Bush and his surrogates have replied, rightly, that if that voter didn't intend to vote in the presidential race, interpreting her ballot as a vote for either candidate is equally unfair and undemocratic. When the voter's intent can't be clearly discerned, the presumption that her vote should be "counted" at all, in the name of enfranchisement, is a fallacy. Yet that is precisely the basis on which the U.S. Supreme Court has just handed the election to Bush. Unable to resolve which candidate won more votes in Florida, the court ruled that the state's 25 electoral votes had to be counted for one candidate or the other by Dec. 12, lest Floridians be "disenfranchised."

Addressing the nation on Nov. 22, Bush cogently shredded Gore's argument that every vote must be counted. "Voters who choose not to cast a vote for president have that right, and no one else has the right to make their choice for them," Bush observed. "Voters who clearly punched preferences in other races on the ballot, but did not do so in the presidential race, should not have their vote interpreted by local officials in a process that invites human error and mischief." In their Dec. 10 brief to the U.S. Supreme Court, Bush's lawyers explained how supervisors of the recount, in their zeal to enfranchise everyone, had thwarted the will of some voters. "Voters who made some minor mark on their ballot but ultimately determined not to vote for any presidential candidate had no notice whatsoever that that minor mark could later be counted as a vote," the brief noted. In their concurrence Tuesday night, three members of the court majority ruling for Bush—Justices Rehnquist, Scalia, and Thomas—agreed that the quest to count every mark on every Florida ballot, no matter how ambiguous, was "a search for elusive—perhaps delusive—certainty as to the exact count of 6 million votes."

How curious, then, that these same justices, having deemed the search for a clear Florida winner elusive and delusive, demanded that Florida's electoral votes be interpreted right away as having been cast for one candidate or the other. On Dec. 8, Bush adviser James Baker, who had spent weeks debunking Gore's "count every vote" mantra, protested that the statewide recount ordered by the Florida Supreme Court, by extending past Dec. 12, "could ultimately disenfranchise Florida's votes in the Electoral College." In their concurrence, Rehnquist, Scalia, and Thomas agreed. A constitutional recount "cannot be completed without taking Florida's presidential electors outside the safe harbor provision, creating the very real possibility of disenfranchising those nearly 6 million voters," they argued, quoting a dissenting opinion in the Florida Supreme Court. Accordingly, the U.S. Supreme Court's five-member majority concluded, "Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional … we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed."

The U.S. Supreme Court majority frames this deadline as a matter of legislative intent. "The Supreme Court of Florida has said that the legislature intended the State's electors to 'participat[e] fully in the federal electoral process,' as provided in 3 U. S. C. §5," says the majority opinion. "That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12." But if, as three members of the U.S. Supreme Court majority (let alone the four dissenters) admit, the winner of the popular vote in Florida can't be conclusively determined, which electors did the Florida Legislature, at the time it established the state's electoral system, intend to participate in the federal process? The electors designated by a future governor, the electors designated by a future legislature, or the electors designated by a future state Supreme Court?

Bush was right the first time. Voters whose intentions can't be definitively clarified "should not have their vote interpreted by … officials in a process that invites human error and mischief." That principle applies to the voters of Florida collectively as well as individually. The U.S. Supreme Court's premise that despite the indecipherable outcome of Florida's popular vote, that state's electoral votes must be awarded to one candidate or the other by Dec. 12, lest Florida voters be "disenfranchised," is exactly the kind of feel-good illusion which, as conservatives note in other contexts, often leads liberals astray. Such "subjective determinations about an absent voter's intent" pose, in the words of Bush's Dec. 10 brief to the court, "a very substantial risk that the method for determining how to count a vote will be influenced, consciously or unconsciously, by individual desire for a particular result." How true.

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William Saletan is Slate's national correspondent and author of Bearing Right: How Conservatives Won the Abortion War.
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Reader Comments from The Fray:


Saletan: I agree with much of your latest piece, but the question is also begged: how do you get out of this mess (and please, any who read this, can we spare the "count every vote" sloganeering)? There was a certified vote total after all; maybe two different slates, either produced by recount or by legislative action, or both, was the best solution. Toss the whole mess to the U.S. Congress. Perhaps, a long, drawn-out honest-to-God Constitutional crisis would have been best.

--Will Allen

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When speaking of the results of the popular vote, one can only accept and interpret what that means based on the statutes existing at the moment the vote is taken. Granted, the statutes and procedures in Florida showed themselves to be inadequate and contradictory, which allowed the continuing drama of the past 5 weeks. However, by definition, the winner of the popular vote was George W. Bush--because, at each and every legal step of the process, he had the larger number of tabulated votes. All that the Supreme Court decision did was to magnify the fact that, after the initial count (which concluded in the early hours of November 8) and the statutory statewide recount (due to the statistical nearness of the original result), Governor Bush had won. Everything else after that point has been simple misdirection--because all of the demands for manual recounts, and the court litigations, did not fulfill the demands for equal protection--and by the time the decision was brought to the Supreme Court, time had run out for an alternative, satisfactory resolution.

But Florida is not alone in having inadequate and contradictory legislation controlling its election process. They just happened to be the state which was caught "with its pants down" by the national tenor of the election. The potential for this happening again elsewhere is strong and it behooves the legislatures of all states and municipalities to examine their statutes in light of what has happened in Florida.

--Steve Craven

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Two thing that cannot stand the light of day are skullduggery and cockroaches. If the vote and count in Florida was as legal as the Bush team said, it could stand a thousand recounts and he would still have won in Florida. If it was skullduggery, the ballots should be sealed and then burned so we will never know how crooked it was. A thousand flawed re-counts will still be flawed. One honest re-count will expose the truth

--B.Beuhler

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